Properly disregarding some immaterial allegations in the pleadings, the court below first considered the question whether it had jurisdiction to act upon this petition. It held that it had full power and authority to determine the cause. That decision is assigned as a reason of appeal.
In Connecticut since the earliest colonial days, "a benign yet arbitrary power, which every sovereignty exercises, to take care of the persons and estates of infants," has been conferred by statute upon Courts of Probate. Olmsted v. Olmsted, 38 Conn. 309, 319. Primarily the parents are entitled to the custody of their minor child, and formerly, in case of controversy, the father to the exclusion of the mother. Since 1901 the rights of both parents have been equal; and upon the death of either the surviving parent becomes the sole guardian. The right of custody has never been an absolute right, which could be bargained away or disposed of or transferred by either parent, except by giving in adoption with the approval of a Court of Probate in a manner prescribed by statute. Johnson v. Terry, 34 Conn. 259, 263; General Statutes, §§ 4878, 4879. After the death of both parents, Courts of Probate have always been empowered to appoint a guardian *Page 443 to have the custody of the person of a minor orphan. Acts and Laws, 1750, p. 85; General Statutes, §§ 4863, 4864.
This jurisdiction and power of the Court of Probate has been long established, has been expressed from time to time in terms adapted to conditions which experience has revealed, is general and ample, and evidently intended to cover the requirements of all circumstances. General Statutes, Chap. 248. From any decree of the Court of Probate, any person aggrieved may appeal to the Superior Court. General Statutes, § 5071. The appellate court will take the place of the Court of Probate and try the case de novo, but it has no greater powers. Davis' Appeal, 39 Conn. 395, 401;Mack's Appeal, 71 Conn. 122, 132, 41 A. 242; Wilson v. Warner, 84 Conn. 560, 80 A. 718.
To test the right to retain the custody of a minor child, the writ of habeas corpus has long been used and approved as the form of proceeding. Fields v. Law (1796), 2 Root, 320, 323; Kelsey v. Green (1897),69 Conn. 291, 298, 37 A. 679. In such proceedings the trial court is not bound by a previous decree of a court of another State, when the child has since become a resident of this State. In such conditions the welfare of the ward of the State is the paramount consideration, whether the controversy be between parent and parent or between a parent and a stranger. And in reaching a conclusion as to what will best subserve the best interests of the child, "its own wish and choice may be consulted . . ., if it be of an age and capacity to form a rational judgment." Richards v. Collins, 45 N.J. Eq. 283,287, 17 A. 831; Kelsey v. Green, 69 Conn. 291,299, 37 A. 679.
In this State, "divorce . . . is the special creature of statute." Steele v. Steele, 35 Conn. 48, 54. By statute exclusive jurisdiction has been conferred upon the *Page 444 Superior Court to grant divorces for specified offenses, and the form of procedure prescribed. General Statutes, Chap. 282. Authority has been conferred also to make certain specified orders relating to matters which are incidental to the principal action. The court may assign to a divorced woman a part of her husband's estate, and change her name, and order alimonypendente lite. In 1837, "on any petition of a woman for divorce," it was enacted that the court might make an order as to custody of children and at any time thereafter annul or vary such order. In 1877 these provisions were made applicable to any case in which the Superior Court might, "on complaint," declare a marriage void. It is evident that in each case the order was one to be made in a proceeding incidental to an action for divorce. In 1883 an Act was passed, and amended in 1885, which is now § 5291 of the General Statutes. By its terms it applies only "in all controversies before the Superior Court between husband and wife as to the custody of minor children of the marriage." At the time this Act was passed, there could be no such controversy before the Superior Court except one involved in or growing out of an action for divorce or a writ of habeas corpus such as we have mentioned above. The application of the provisions of this statute was evidently limited to the former action. Moreover, the incidental character of the relief which it was intended to provide is further indicated in the last clause of the Act, which provides: "when such court is not actually in session, any judge thereof may, prior to any action in the premises by the Superior Court, make any order which he may deem reasonable as to the care, custody and maintenance of any such minor children during the pendency of the cause, and may make any proper order in the cause, including orders of injunction, and any such orders *Page 445 may afterwards be set aside or altered by such court, or by such judge when such court is not actually in session." As an auxiliary to a controversy before the court in the form of a petition for divorce, to obtain or retain the custody of children, such a provision as this is adapted to serve a reasonable purpose; but in an independent proceeding having no object but to obtain the custody of children, it is difficult to presume that authority would be given to a judge alone, apparently without notice or hearing, to make an order which would effectively decide the controversy in favor of one party or the other, at least until the indefinite time when such order should be set aside or modified by the court in session after hearing. In fact, the phrase "to make any order" is applicable to a ruling on an interlocutory motion or petition rather than to a decision upon the principal matters in controversy. We think that in this statute the words "controversies before the Superior Court" were plainly intended to mean "controversies pending in the Superior Court," and that the action of the court or the order of the judge relating to the custody of the children is restricted to such as may be made in a proceeding incidental to a pending action. That is, the court's jurisdiction to entertain a petition for relief of this kind and to grant its prayer is a jurisdiction already acquired in an original and independent action pending in the court. Whether this statute makes any addition to the powers which the Superior Court has authority to exercise in divorce proceedings may be questionable, but it seems to us manifest that it was not intended to confer upon that court any original and independent jurisdiction over the custody of the person of a minor child. There is no apparent need or occasion to give to another court the authority over such matters which had long ago been delegated to the Court of Probate, *Page 446 and which had been exercised by that court constantly for many years and proved to be easily available and practically efficient. That authority, vested in the Court of Probate, in the lack of terms expressly indicating otherwise, may well be regarded as exclusive. That this statute was designed to bear upon divorce proceedings only, may reasonably be inferred from the fact that it has been always included in the sections of the chapter of the General Statutes concerning such proceedings, by the makers of the three revisions of the statutes which have been adopted by the General Assembly since this statute was enacted.
The petition in the present case is not incidental to any proceeding for divorce now pending in the Superior Court. It is an independent petition, and no jurisdiction over it has been acquired in any previous action. Morrill v. Morrill, 83 Conn. 479, 483,77 A. 1. In our opinion the Superior Court erred in holding that it had jurisdiction over this cause.
This conclusion renders it unnecessary to consider other assignments of errors involved in the judgment of the court below.
There is error, and the cause is remanded with direction to the Superior Court to dismiss the same for want of jurisdiction.
In this opinion the other judges concurred.