The Clergyman's Hand-book of Law: The Law of Church and Grave

by Charles Martin Scanlan

Chapter XXVII. Parent And Child

361. Custody, Maternal Relatives, Father.—A parent is entitled to the care and custody of his child if he is competent to transact his own business and not otherwise unsuitable. And the mere fact that the maternal relatives who have had the care of the child from its birth have become attached to it and desire to continue to care for it and are able to secure it better advantages than its parent, does not render the parent unsuitable to have its care and custody within the meaning of the statute. Also, the want of a sympathetic nature or cold reserve in a parent or the fact that he is away on business a great deal of the time, is not sufficient to render him unsuitable. But the right of the father may be lost or forfeited by his ill-conduct, gross ill-treatment, cruelty, or abandonment, or when his conduct and life are such as are injurious to the morals and interest of his child. When the father dies or forfeits his right for reasons already given, the mother, if alive, succeeds to all those rights, subject, however, [pg 193] to the same conditions as the father. And in the case of a child of tender years, the good of the child has to be regarded as the predominant consideration.[640]

362. Mother, Illegitimate, Father.—The mother has a right to the care and custody of her illegitimate child to the same extent that a parent has to his legitimate child.[641] The putative father on the mother's death succeeds to the mother's rights as against the maternal relatives and may secure the custody of the child by habeas corpus. This rule is different from the one that prevailed in the Roman law.[642] However, when the father has given bond for the care, support, and education of an illegitimate child, his right to the custody of the child may be superior.[643]

363. Legitimatized.—And when under a statute a child is legitimatized by acknowledgment or subsequent marriage, the father has the better right to its custody.[644] Usually there are many provisions in the statutes of the various States which substantially provide [pg 194] for the rights, relative and otherwise, of the parents and child in such cases.

364. Punishment, Instrument, Murder.—A parent or a person in foro domestico or in loco parentis may give reasonable corrective punishment with a fit instrument to a child. But if a parent or master whips a child so that it dies, he is guilty of manslaughter. And if he uses lethal instruments of punishment, he is guilty of murder.[645] Where a mother in anger threw a poker at one child and hit and killed another child, she was guilty of manslaughter.[646] The punishment always becomes unlawful when it is excessive, and drunkenness is no excuse.[647]

365. Guardian, Religion, Courts.—In England where a child was taken from the testamentary guardian, who after the death of the testator changed her religion from a Protestant to a Catholic, it was held thereby to be incompetent to continue as guardian.[648] And in New York it was held that where the father and mother were Catholics, the guardian must endeavor to bring the children up in that faith, as a guardian will not be permitted to proselyte wards.[649] [pg 195] But where a father who was a Catholic allowed his child to be brought up by a maternal aunt who was a Protestant, until the child was fourteen years of age, the father was not then entitled to the child's custody for the purpose of having it instructed in his own faith.[650] Courts will not interfere with the religion of a child, but will allow it to be brought up in the religion of its parents; however, the best interests of the child will be considered by the court without conceding everything else to its religion.[651]

366. Convent, Consent.—A daughter under age who entered a convent to become a nun without the consent of her mother, may, on a writ of habeas corpus on the petition of her mother, be required to leave the convent and return to her home.[652]

367. Adoption, Rights, Duties.—Persons of suitable age and circumstances to enter the marital relations, may adopt a child. When a married couple do not unite in adopting a child, the consent of the non-adopting spouse must be obtained. Also, if the child's parents are living, their consent is necessary unless they have lost their paternal rights by abandonment or divorce. [pg 196] The decree of adoption may be set aside for good cause. The adopted parent has all the rights over and duties toward the person of the adopted child that a natural parent has, including necessaries and religious training. Usually the child inherits from the adopted parents, but the adopted parents do not inherit from the child. The statutes on adoption are not the same in the several States, but they cover the subject and must be strictly followed.[653]

368. Infancy, Manumission, Marriage.—At common law a person is an infant until he is twenty-one years of age. Statutes have modified that rule so that girls in some States, and both girls and boys in others, may contract marriage at an earlier age without the parental consent. Generally, an infant can not contract marriage without the consent of the living parent or guardian unless the child has been manumitted. Where the boy was under the age of consent, but he falsely told the priest that he was of full age, his father had the marriage annulled.[654]

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