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IN THIS ISSUE--“THE CHILD OGENEZMY OBALY, PARENTS"
SEP 88 1911
324,5 J97 car
Entered as second-class matter July 31, 1911, at the p ostoffice at Chicago, Ill., under Act of March 3, 1879.
(THE JUVENILE COURT RECORD endeavors to bring
My attention was called to this matter in having to deal with an actual case. A mother wished to assign her child to our society, stating that she was divorced from her husband, that the proposed disposition of the child was without his knowledge and, in fact, she did not consider him concerned in the transaction. The case seemed simple enough, but it raised the question of the legal status of the child, the answer to which upon investigation was found to be not as easy as it looked. It is a
case that only infrequently comes up in court and there is little literature upon the subject.
As my conclusions were entirely different from what I had supposed the law to be, I venture to give them for the benefit of those who may have to deal with this class of dependent children.
Our present laws have come down to us largely from English common law. In England the child was the ward of the king. As
he king's powers was deputed to the courts,
came to be said that the child was a ward of chancery. The power of the court is accepted to be that of wardship which conserves but takes away no right of the child.
We are to consider first the right of the father in the child, then the right of the child in its father, lastly the proper method of procedure in receiving such a child.
First: The right of the father in his child.
In common law, under natural family relations, the husband is entitled primarily to the custody of his legitimate minor child as against the world. The mother's custody and authority to a certain extent are deemed lawful, but she is said to act in this regard merely in the nature of an agent and not in her own right, but on the death of her husband she attains paramount right. This idea of the mother's right comes down from old common law that regarded woman as a chattel, who did not own the clothes on her back. In fifteen states the custody and authority of both parents is co-equal. This has been brought about through the agitation and insistence of women's clubs. In two instances the father gave away his child against the will of the mother, when the women in behalf of mothers raised a protest and secured the change in the law of these states.
Equal guardianship of parents exists in the District of Columbia, New York, California, Pennsylvania, Illinois, Oregon, Kansas, Iowa, Wisconsin and Minnesota.
But it should be understood that no father has an absolute right in his child. He has the right of custody and authority, but if he is not doing his duty as a parent the court, representing the right of the public in general, may step in and deprive him of that custody and give it to the mother or to another, upon the ground that it is for the best welfare of the child. The court looks not at the rights of the parents so much, they are subordinate, as to the good of the child and of society and the State. Manifestly, it would be a cruel thing for a depraved father to retain control of his child to its injury. If the court has awarded the custody of the child to the mother and conditions so change that she is not a suitable person to have the charge of the child, the court may at any time modify its order, transferring the custody of the child to the father or to a third party. The pre-eminent consideration always is, what is best for the child. The court may even inquire of the child which of its parents it pre
fers to have the custody of it, if of intelligent age.
These things being so, it will be seen that in a case where absolute divorce has been granted and the custody of the child is given to the mother, she has for the time control of the child, subject always to the discretion of the court. It is to be observed just here that the custody of the child is not a necessay incident of divorce, but a question that arises therewith. The parties being freed from the marriage vow are not free from the responsibility to and for the fruit of their marriage.
By decision of the courts of many states no adoption of a child is legal unless consent of both living parents is given or both are summoned into court and heard. In the case of Willis vs. Bell 86 Ark. 473 and Miller vs. Higgins Cal. opp. 111 Pac. 403 (Lawyers' reports Annotated New Series 1911) the court held “The fact that parents are divorced or not living together is no ground for denying to either of them the right to notice of proceedings to adopt the child, and the consent of the parent having the custody of the child is not sufficient to sustain the proceeding as against the parent not consenting thereto, who has not received notice thereof."
According to this ruling, if the mother gives consent by virtue of having custody of the child, two things may happen. The court may say, “You were given custody of this child; by what authority did you give that custody to someone else?” The father might come in and say, "I have rights in this matter and demand to be heard. I never gave consent to this adoption."
In the State of Minnesota, for instance, the statutes provides that in case the father has abandoned his child or his whereabouts are unknown, there must be several weeks' published notice to the father. In the instance of divorce, the courts construe the statute very strictly, and the father's consent will be required unless the divorce decree shows that apparently absolute control of the child was given the mother and that the father is not contributing in any way to the child's support.
If he contributes in any way to the support of the child, his consent to the adoption is required, though the child is in the sole custody of the mother. Even if the father does not contribute in any way to the child's sup port, and the child is in the sole custody of the mother, she canot give a power of attorney for the adoption of the child, as in other cases, but must appear personally in court. These things are largely a matter of statute, and custody carries no permanent right of the disposal of the child unless it is so specified in the order of the court. The court frequently takes the child away from the mother and returns it to the father, or the divorce may be conditional, or may grant to the father rights of visitation or joint custody with the mother. The custody is usually given to the least offending party, but the child is not taken from the father as a punishment, the conduct of the parents is only incidental. So far, then, as parental right is concerned, divorce proceedings, with the result of an absolute decree sundering the marriage bond, do not necessarily take from the
his rights in his parents are not in the least disturbed by a decree of divorce. Such a child not being affected by the divorce will inherit from his natural father just the same, though that parent might cut off his right of inheritance by will the same as under other circumstances. There is no difference of opinion as to the legal status of the child in his rights of inheritance unless, as just stated, there may be sufficient reason why these rights should be nullified. A legally adopted child may inherit not only from his foster parents, but from his natural divorced parents as well, except in one state he inherits from adopted parents only. We are not now speaking of the illegitimate child; having no legal father he cannot take his name or share in his property. He can only share in his mother's. It
father the right to be heard in the disposition of his child, when it goes from the custody of his wife.
In the case of mere legal separation the parties are allowed to live a separate existencc as to bed and board, but the marriage vow is not annulled. In this case the parents have equal rights in the child, neither can act for the other in the disposal of their child.
Second: What are the rights of the child in its parents ?
We have seen hat the decree of divorce effects primarily the husband and wife, the child only incidentally. The fact follows that
used to be that the adopted child shared in his foster parents' property only by will, but now it is usual that, being made legal heir, he shares in all respects with the natural heir.
Third: From the principles laid down and our reasoning thereon, the method of procedure in adoption is a very plain one.
It is exceedingly important that the society acquire legal title to a child in order that it may give one to the foster parents; and, in acquiring title to the child of legally married or divorced parents, consent of both parents should be obtained if possible, because both