Davis v. Sears’s Empirical Analysis

Citation profile

39 state decisions

Most-quoted passages

The sentences later courts lift from this opinion, ranked by how many decisions quote each — the parts of the opinion doing the work. These counts are smaller than the citation total above because most of the 39 citing decisions cite the case generally; a passage count includes only decisions quoting that exact language verbatim.

1. “Where, however, a parent, by writing or otherwise, has voluntarily transferred and delivered his minor child into the custody and under the control of another, as in the case at bar, and then seeks to recover possession of the child by writ of habeas corpus, such parent is invoking the exercise of the equitable discretion of the court to disrupt private domestic relations which he has voluntarily brought about, and the court will not grant the relief unless, upon a hearing of all the facts, it is of opinion that the best interest of the child would be promoted thereby. It is sometimes said that such a voluntary transfer is `void,' or that it is `contrary to public policy'; but the cases using such language show that it is not used in an absolute sense, but in the sense that such transfer is no impediment to the action of the court in determining what is best for the interest of the child. The law does not prohibit such a transfer, but, on the contrary, allows the child to reap the benefit thereof when it is to its interest so to do. The attempted transfer is not a contract, and cannot be enforced as such, because neither the child nor its custody was a subject-matter of contract. The fact that in pursuance of this attempted contract the parents delivered the child to appellee, and appellee received the same for a lawful purpose, new domestic relations thereby *Page 571 being formed for the child, renders the possession by appellee of the child prima facie lawful.”

   1 later decision quote this exact passage
   e.g. Oldham v. Oldham

2. ““Under the common law, as well as the statute law of Texas the parents have the natural right to the custody and control of their child, and, in case of the death of one parent, the surviving parent has the right to its custody, Castro v. Castellanos (Tex.Com.App.) 294 S.W. 525 . But the parents’ right to the custody of their child, however, is not absolute, but is subject to judicial control, when the interest of the child demands it, and must yield, where the real and permanent interest of the child demands a different disposition. “But the exercise of this judicial control, antagonistic to the right or control which the law gives to the parents of the minor, can only be exercised where the testimony in the case shows either the unfitness of the parents, or their incapacity, or any other condition, the legal effect of which would be to demonstrate that the best interest of the child would be subserved by giving its custody to another than the parents. As a basis for the exercise of judicial control over the minor, in the absence of pleading and proof, that the parents are unfit to have the care and custody, of their child, as in this case, there must be pleading and proof, to the effect that the parents have voluntarily relinquished their natural and statutory right to have this care and custody.””

   1 later decision quote this exact passage
   e.g. Ueckert v. Ueckert

3. “But where a parent has voluntarily parted with and seeks to regain the child, he has the burden of proving his fitness and that the best interest of the child will be subserved by commitment to his care.”

   1 later decision quote this exact passage
   e.g. Oldham v. Oldham