Hummel v. Parrish

FRICK, J.

. I concur with the Chief Justice. If I followed my natural inclinations as a parent and considered nothing save the legal rights of the mother, the appellant here, I should perhaps arrive at a different conclusion. Most cases like the one at bar would be comparatively easy to determine if one were inclined to regard the naked legal rights of the parent only. *392Courts in sucb oases, however, have a higher duty to perform than to merely discover and enforce the naked legal rights of the parents. In the case at bar the evidence convinces me that the mother’s present desire to obtain custody of her child is not wholly unselfish. It is well-nigh impossible to read the record and arrive at a different conclusion. The child in question, as the mother well knows, is a female child without a name; and, had it not been for the good offices of her grandmother, I cannot doubt but the child would have lost her identity in a European poorhouse or orphan’s home.. It was the grandmother, and not the mother, who rescued the child from oblivion. It was the former who was instrumental in placing her into the custody of the respondents, who for more than five years have provided, and' will continue to provide, the child with that which is of more importance than wealth, namely, good moral training and an education such as will enable her to meet the demands of society and to take care of herself if it should become necessary when she develops into womanhood. Moreover, they will give her a name and a standing in the community where she is brought up. In short, the child, if she is permitted to remain in the custody of respondents, will receive all the benefits and advantages that any child of honest parents, with moderate, though sufficient means, would receive in this commonwealth. TTpon the other hand, if she is placed into the* custody of appellant, in case other children should be born to her, the child no doubt will always be regarded as one not of the family. Further, as the Chief Justice has pointed out, the child now knows only of one home and recognizes the respondents as those who are nearest to her. Her own mother is, comparatively speaking, a stranger to her. A stranger not only in acquaintance, but a stranger with respect to her habits and mode of life. In taking the child away from respondents, therefore, it would be to take her away from her friends and place her among strangers, who to her would have strange ways. This would' be a gross injustice to the child in view that she has now reached the formative period of her life. What this would mean to the child, *393the mother ought to know and appreciate. Her desire for the custody of the child, therefore, cannot spring from pure motherly love, but must be based upon something else. Again, the record conclusively shows that the mother’s past conduct was not such as inspires one to believe that she has a very exalted conception of what a young woman’s conduct and deportment should be. While, so far as the mother is concerned, one may well overlook her error, yet, when one is charged with determining the welfare of a young girl, one may well hesitate before taking her from a virtuous and in all respects desirable home and expose her to at least unknown conditions and surroundings. Conceding, therefore, the naked legal rights of the mother, yet I have not the slightest hesitancy in saying that the record is conclusive that the best interests of the child and the equities of the respondents far outweigh those legal rights. Under such circumstances, we owe it to the child, to the state, and to ourselves not to permit any experiments with respect to the welfare of a young girl who is nameless and helpless and must look to us alone for protection.