Ex parte Boaz

[application fob mandamus to probate court, in matter op habeas corpus POR CUSTODY op infant.] 1. Father’s right to custody of infant child. — On habeas corpus sued out by the mother, the probate court cannot take an infant child from the custody of its father, and give it to the mother, when no improper restraint of the infant is established.

AppiioatioN by Mrs. Jane H. Boaz, suing by her next friend, for a writ of mandamus, or other remedial process, to be directed to the probate court of Balias, for the purpose of compelling that court to take jurisdiction of her petition for the writ of habeas corpus against her husband, to obtain from him the custody of her infant child. The petition for the writ of habeas corpus, the defendant’s answer thereto, the. evidence adduced on the hearing, and the decision of the probate judge, declining to act ’for want of jurisdiction, are made part of the application to this court. The petition alleged, that Mrs. Boaz had been married to her said husband about four years, and had in the meantime given birth to a female child, who was about two years old when the petition was filed; that her husband, a short time before the filing of the petition, had abandoned her, on account of the institution by her of a chancery suit against him respecting certain property which she claimed as her separate estate, and had removed to another plantation owned by him, carrying with him, against the petitioner’s remonstrances, their said infant child; and that, in consideration of the infant’s sex and tender years, the petitioner is its lawful custodian. In his answer to the writ of habeas corpus, the defendant admitted, that he had voluntarily abandoned his wife, (but for reasons which he deemed sufficient to justify him in so doing,) and had taken his child with him ; asserted his lawful right to its custody, and denied that he exercised towards it any unlawful or improper restraint; and denied that the probate judge had any jurisdiction to deprive him of its custody on the application of the petitioner. — The general doctrine of the common law, that the father is entitled to the guardianship and custody of his child, is admitted; and it is further admitted that, in case of the voluntary separation of the husband and wife, the custody of the children is a question -which the statute gives to the decision of the chancellor. The application here is rested on a distinct ground: the mother’s right to the custody of her infant child for nurture; in which case, the court acts solely for the good of the infant, irrespective of other considerations. — 8 Burr. 1436; 1 Stra. 444; 2 Stra. 982; 3 Oon. Eng. Ch. B. 120, note b; 8 Paige, 56; 25 Wendell, 95; 4 Johns. Ch. 83; 13 Johns. 418; 3' Mason, 485; 5 Binney, 520; 18 'Wendell, 637; 6 Rich. (Law) R. 344; 8 Johns. 328; 4 Humph. 535; Forsyth on Infants, 10, 65; Bishop on Marriage and Divorce, § 633. The common-law doctrine, as to the father’s right to the custody of his child, is based upon his obligation to support it, and his right to its services; he being the only member of the family who could hold property. The principle ought not to obtain here, at least to the same extent; for our laws give the wife a separate estate, and make it liable for the support of her family. cited 16 Pick. 203; 8 Paige, 68; 2 Story’s Equity, § 1341; 4 Johns. Ch. 80 ; 13 Johns. 419; 5 East, 221; 25 Wendell, 64, 104; 18 Wendell, 638; 19 Wendell, 16; 16 Eng. Law and Eq. R. 221; 12 ib. 463; 14 Geo. 657; 6 Rich. Eq. 249; Bright on Husband and Wife, 318, note d; Bishop on Marriage and Divorce, 633-41; 19 Ala. 604; 17 Ala. 14; 3 Ala. 760; 2 Ala. 531.