I dissent. I am unable to accede to either the conclusions as to the facts or the propositions of law laid down in the prevailing opinion. The law governing the legal questions here presented has been stated and reiterated by this court so often it should need no further discussions. The prevailing opinion attempts to analyze and draw conclusions therefrom which I think wholly at variance with plain wording of the opinions.
In Harrison v. Harker, 44 Utah 541, at page 566,142 P. 716, at page 725, Mr. Justice Straup in a concurring opinion states the law in the quotation cited and quoted by Mr. Justice Wade. In the prevailing opinion in the present case Mr. Justice Wade then argues that the court did not *Page 21 approve the statement by Mr. Justice Straup, because Mr. Justice Frick argued the best interests of the child was subserved by placing it with its natural parent. We submit a perusal of that opinion does not justify the construction of its holdings made in the prevailing opinion. It then seeks to draw some satisfaction from the fact that Mr. Justice Straup dissented from the opinions in Stanford v. Gray, 42 Utah 228, 129 P. 423, Ann. Cas. 1916A, 989; and Hummel v. Parrish, 43 Utah 373, 134 P. 898, both written before the Harrison v. Harker case, supra, wherein the other justices held that the natural parents had legally surrendered his right to the care of the child and therefore the best interests of the child became the determining factor. That is one of the bases laid down by Mr. Justice Straup in the Harrison case as justifying an examination unto the best interest of the child. The dissent by Mr. Justice Straup was not upon that rule of law but upon the question as to whether the mother had legally surrendered her right to custody. Those cases, therefore, like the Harrison case, support the rule laid down by Mr. Justice Straup.
In Jones v. Moore, 61 Utah 383, 213 P. 191, Mr. Justice Frick, upon whose utterance the author of the prevailing opinion mainly relies, after quoting the rule from the Harrison case, as the law in this jurisdiction, says the same thought is expressed in Stanford v. Gray, supra, and Farmer v. Christensen,55 Utah 1, 183 P. 328, adding [61 Utah 383, 213 P. 194]:
"* * * where there is a question respecting the parent'smoral fitness, or where by his conduct or acts he hasforfeited or lost his legal right to custody as a parent, orhas abandoned the child, but desires to reclaim its custody, the best interests of the child is held to be the controlling or determining factor in the case." (italics added.)
On the next page, 390 of 61 Utah, and at page 194 of 213 P., Mr. Justice Frick says:
"The questions, therefore, are: First, has the plaintiff by anything that he has either said or done forfeited or lost his primary right as a parent to have the custody and control of his child? and second, is *Page 22 he morally unfit to have the care, custody, control, and education of his child, or is he entirely without means to support the child, and for that reason it is in danger of becoming a public charge — that is, a mere pauper?"
Mr. Justice Straup was not on the bench at the time. All five justices concurred. In Sherry v. Doyle, 68 Utah 74,249 P. 250, 253, 48 A.L.R. 131, all five justices concurring therein, this court said:
"We thus have a situation where the plaintiff has shown a clear legal right to the custody of the child, and where the defendants have shown no legal right whatever. No one claims to the contrary. No abandonment or forfeiture or laches or legal surrender or unfitness or inability on the part of the plaintiff was either alleged or shown. We thus think the legal right of a fit and suitable parent to the custody of his child ought not to be denied him as against an opposing claimant, himself without a legal right to its custody.
* * * * * * "Unless the plaintiff is immoral or unfit, such association and companionship of the father and the child is the right of both and ought not to be denied to either. The comforts and benefits of such an association with one of the child's own flesh and blood usually are far more advantageous than an association with strangers.
* * * * * * "In Jensen v. Earley, this was quoted and approved from the case of Hummel v. Parrish, 43 Utah [373], 382, 134 P. 898:
"`The legal presumption is that it is for the best interests of the child and of society for the child to remain with its natural parents during the period of its minority and be maintained, cared for, and educated by them and under their supervision and direction.'"
I find no cases in this jurisdiction to the contrary, and there are none cited in the prevailing opinion. I find nothing in this record to call for any modification of the doctrine and rules which have been the constant practice of this court throughout its history.
Now a comment as to the facts. It is conceded that the mother is morally fit to rear the children, that she is able and competent to do so, and there is no apparent danger of them becoming public charges if left with their mother. *Page 23 It is only contended that she drinks some, and that she likes men. May I ask the questions: Is any woman who dislikes men fit to rear children? Is it for the best interests of little children of a coming generation to press their tender pliable minds and natures into the mould of two generations ago? As pointed out in the prevailing opinion, the grandmother is a strong domineering woman who had aroused antagonism in her own children because of her inflexible desire to make all lines conform to her concepts and will. The proof of the pudding is in the eating; the story told in the prevailing opinion as to the success (?) of the grandparents in rearing one family is at least enough to make you perk up your head and wonder.
There is another reason I cannot concur in the opinion. I expressly disavow the thought that what I say hereafter is in the mind of Mr. Justice Wade or any of my other associates, but "tall oaks from little acorns grow," and the principle laid down opens the door to the philosophy and practice indicated in what follows.
I cannot subscribe to what I think unintentionally underlies the philosophy or reasoning of that opinion. I deny the right of the state to set itself up as a substitute for the family unit; to arrogate to itself the right and power to rear children, and prescribe all the thoughts and developments of the children within its border. The world has just witnessed the debacle that can be produced by two nations devoted to the philosophy that children are wards and rights of the state, and not of the parents. Why I ask should a judge, or a majority of the justices for that matter, be deemed blessed with such superior wisdom about the rearing of children that he can say just what is best for every child when he knows nothing of the heredity or background which gives them life? Whereof is the wisdom born which leads one to say that a child will be a better person if stripped of the pride of ancestry; rendered for all practical purposes, nullius filius; and made to grow up devoid of the right to say "my father" or "my mother?" Why should one man have the power or right to require other people *Page 24 to grow according to the mould into which he perhaps misshapes the character of his own children? A mother's worries, cares, caresses, tears and prayers are stimulating and potent reclaiming agencies in the lives of all of us. The sense of obligation and devotion to those who gave us being is a different feeling from that felt towards one who gives us shelter. When you take a child away from the consciousness of its parentage you remove one of its basic assets in character building.
When the state steps in and interfers with the ways of nature, the result is generally bad. To take from a mother or father the child they brought into being, is to rob them of the greatest balance staff, the strongest emotion, the supremest devotion life can ever know. We say a mother is morally fit to rear her children properly, yet because she does not fit her pleasures and relaxing moments into the mould from which we take ours, she shall be denied the right to rear her children. We strip her of the very things that could keep her as good as she is, or make her better. We rob her of the steadying hand that should guide the ark, and leave her on a ship without a rudder, alone on a wide, wide sea. Not because she is bad, not because she is unfit or unworthy, not because she is unable or incompetent, but because all of her social ideas and habits do not fit our "more righteous than thou" concepts of life. To want others to live according to our ideas is natural; to impose them upon others is tyrannical. I concede to the state no right or power to go beyond the principle laid down in the Harrison, the Moore and the Earley cases. I think the state has never sought to go any further. This I think is the fair import of Sec. 14-7-31, U.C.A. 1943, cited, and a tiny bit thereof quoted in the prevailing opinion. Because the opinion does violence to my conception of our statutes, our jurisprudence, and our basic philosophy of government and life, I must dissent.
PRATT, J., not participating. *Page 25