Judges: PER CURIAM. —
Attorneys: Thomas Hamilton, for Plaintiff in Error;
E. W. R. C. Davis, for Defendant in Error.
Filed: Nov. 07, 1934
Latest Update: Mar. 02, 2020
Summary: There is no material difference between this case and that of Edward William James Ward v. Lela Cannon, joined by her husband, S. B. Cannon, in which opinion was filed at this Term of the Court. The record shows that E. F. Myers was the father of Foster Myers; that Foster Myers is ten years of age; that the boy's mother died fourteen days after his birth and that the father, E. F. Myers, the Petitioner here, gave the child into the custody of its grandmother. The grandmother lived only five year
Summary: There is no material difference between this case and that of Edward William James Ward v. Lela Cannon, joined by her husband, S. B. Cannon, in which opinion was filed at this Term of the Court. The record shows that E. F. Myers was the father of Foster Myers; that Foster Myers is ten years of age; that the boy's mother died fourteen days after his birth and that the father, E. F. Myers, the Petitioner here, gave the child into the custody of its grandmother. The grandmother lived only five years..
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My view is that the natural father and the natural mother of a child have a superior legal right to the custody of their children, which they can assert at any time unless that right has been cut off by means of an adoption proceeding. Section 5884 C. G. L., Chapter 8478, Acts 1921, Laws of Florida.
A proceeding in habeas corpus to determine and award the custody of a child to his natural parents is not an unauthorized collateral attack on statutory guardianship proceedings, because habeas corpus has always been recognized as the proper remedy to dispose of the custody of children in conformity with law. The writ of habeas corpus has been upheld in this State as an appropriate procedure to restore to its parents a child judicially committed to the guardianship of an institution because of the unfitness of its parents to care for it, on a showing of removal of the cause of commitment. See Hancock v. Dupree, 100 Fla. 617, 129 Sou. Rep. 822, and numerous previously decided Florida cases referred to therein.
And in State, ex rel. Airston v. Bollinger, 88 Fla. 123,101 Sou. Rep. 282, this Court said that on habeas corpus the courts would void an express agreement made by a father surrendering his child to another, when the father has elected to revoke such agreement, and petitioned the courts to give him back his child.
The doctrine that the welfare of the child is a principal, if not paramount, consideration in such matters as are involved in a child custody proceeding must be applied by the courts in the light of what was said by this tribunal in the recent case of Frazier v. Frazier, 109 Fla. 164, 147 Sou. Rep. 464. In that case it was emphasized that the parental rights of the father growing out of the father's legal responsibility, as well as moral obligation to care for his child, should, even as against the mother of the child, be accorded due consideration by the courts when other considerations do not materiallypreponderate against the father's interest in favor of the child's welfare as a superior consideration in case the twoconsiderations are in conflict.
In this country, unlike in Russia, children have not been nationalized on the theory that the state is more competent to be their guardians than are their parents under normal circumstances. Therefore I cannot agree that the sublime relation of parent and child is at any time subject to dissolution by reason of any supposed discretion vested in any department of the government, judicial or otherwise, where there is no showing of legal inability or incompetency on the part of the natural parents to have and exercise the custody of their children. Certainly a man should not forfeit his children's safety, love and companionship on any less clear showing than he would be held to have forfeited his horse or dog.
