Legal custody

“ Where custody or the ability to reproduce a condition of custody is coupled with the mental element of intention to hold for one's own purposes, the legal order confers on one who so holds a capacity protected and maintained by law so to hold, and a claim to have the thing restored to his immediate physical control should he be deprived of it. ”

“ In case of separation only, the petitioner may be assigned a separate maintenance out of the property of the husband or wife as the case may be.
The father is the legal guardian of the minor children. At his death the mother is entitled to the guardianship and custody. The mother may be appointed guardian by the court during the husband’s lifetime. If he is insane or has deserted or neglected his children she is entitled to full custody. ”

“ And if we give or sell the custody of any such land to any man, and he commits destruction or waste, he shall lose the custody, which shall be committed to two lawful and discreet men of that fee, who shall, in like manner, be answerable to us as has been aforesaid. ”

“ It means, my friends, that a woman has no legal right to her own babies; that the law-makers of this Christian country (!) have given the custody of the babies to the father, drunken or sober, and he may send the sheriff—as in this case—to arrest and rob her of her little ones! ”

“ The Guardianship of Infants Act, 1886, has increased the rights of mothers by providing that the Court, in making an order as to the custody of an infant and the right of access thereto of either parent, shall have regard to the welfare of the infants, to the conduct of the parents, and to the wishes as well of the mother as of the father. ”

“ Julian Mack, The Chancery Procedure in the Juvenile Court, in The Child, The Clinic, and the Court (19'25) , p. 310.↑ . See, e.g., Shears, Legal Problems Peculiar to Children's Courts, 48 A.B.A.J. 719, 720 (1962) ("The basic right of a juvenile is not to liberty, but to custody. He has the right to have someone take care of him, and if his parents do not afford him this custodial privilege, the law must do so.") ; Ex parte Crouse, 4 Whart. 9, 11 (Sup.Ct.Pa. 1839) ; Petition of Ferrier, 103 Ill. ”

“ At stake in this case is the welfare of a child. More immediately the question before us is what restriction, if any, does the Constitution of the United States impose on a state court when it is determining the custody of a child before it. ”

“ Custody is viewed not with the idea of adjudicating rights in the children, as if they were chattels, but rather with the idea of making the best disposition possible for the welfare of the children. To speak of a court's 'cutting off' a mother's right to custody of her children, as if it raised problems similar to those involved in 'cutting off' her rights in a plot of ground, is to obliterate these obvious distinctions. Personal jurisdiction of all parties to be affected by a proceeding is highly desirable, to make certain that they have had valid notice and opportunity to be heard. ”

“ In considering an application for the return of a child, the Court may require the applicant to obtain from a court or other competent organ in the state where the child's habitual residence is, a decision that the removal or retention of the child is in breach of the rights of custody. ”

“ If the parties have children, such of them as are so young as to need a mother’s care are temporarily awarded to the woman’s custody even though she be the party declared to be guilty in the divorce suit. ”

“ The society voluntarily took the child there with the intention that it should remain. Through imposition the child was placed in custody of those unfit to receive or maintain control over it, and, as above stated, came into the custody and possession of the respondent.
The child was within the jurisdiction of the court under such circumstances that rival claimants of the right of custody might invoke the jurisdiction of a competent court of the territory to determine, not the right of personal freedom, but to which custodian a child of tender years should be committed. ”

“ If he is insane or has deserted or neglected his children she is entitled to full custody.
If the wife is deserted by her husband unjustifiably and not supported by him, she may receive authority from the court for the custody and earnings of her minor children, and he may be imprisoned not less than six months nor more than three years. If he abandon her and is absent from the State one year or more or is condemned to prison for a year or more, the court can order the income from his property applied to the support of his family. ”

“ The right of the state, as parens patriae, to deny to the child procedural rights available to his elders was elaborated by the assertion that a child, unlike an adult, has a right "not to liberty, but to custody." ”

“ A father's right to the custody of his own children being founded in law on the right of guardianship, this being taken away, they may of course be severed from him, and put by the authority of the court, into more orthodox hands. ”

“ Where the defendant father has a farm home and all the boys express strong desire to remain with him, it is held, that it does not appear that their welfare would be promoted by transferring their custody to the mother, where it does not appear that she has a home to which to take them or what her plans are. ”

“ Moreover, the father, about to die, may bind out all his children wherever and to whomsoever he may see fit, and thus, in fact, will away the guardianship of all his children from the mother. The Revised Statutes of New York provide that "every father, whether of full age or a minor, of a child to be born, or of any living child under the age of twenty-one years, and unmarried, may by his deed or last will, duly executed, dispose of the custody and tuition of such child during its minority, or for any less time, to any person or persons, in possession or remainder." ”

“ Fathers and mothers are given equal guardianship of children in the District of Columbia and nine States—Colorado, Connecticut, Illinois, Kansas, Maine, Massachusetts, Nebraska, New York and Washington. (See Pennsylvania.) In all others the father has the sole custody and control of the persons, education, earnings and estates of minor children. Where this right is abused the mother can obtain custody only by applying for separation or divorce or proving in court the unfitness of the father. ”

“ The court, however, may make such provision as it deems essential for the support of wife or children or an invalid husband. If necessary it may place separate or community property in the hands of trustees, the rents and profits to be applied to the maintenance and education of the children or the support of the wife. The judge assigns the children for their best interests. In general practice the mother, unless disqualified morally, retains the custody of female children of any age and of males to the age of eight, when they are usually given to the father. ”

“ But 'the inherent rights of parents to enjoy the society and association of their offspring with reasonable opportunity to impress upon them a father's or a mother's love and affection in their upbringing, must be regarded as being of an equally important, if not controlling, consideration in adjusting the right of custody as between parents in ordinary cases.' Frazier v. Frazier, 109 Fla. at page 169, 147 So. at page 466. Facts which have arisen since the original decree are one basis for modification of the custody decree. ”

“ The passage of even a relatively short period of time may work great changes, although difficult of ascertainment, in the needs of a developing child. Subtle, almost imperceptible, changes in the fitness and adaptability of custodians to provide for such needs may develop with corresponding rapidity. A court that is called upon to determine to whom and under what circumstances custody of an infant will be granted cannot, if it is to perform its function responsibly, be bound by a prior decree of another court, irrespective of whether 'changes in circumstances' are objectively provable. ”

“ I am of opinion that no such right or power exists in law. I am 145of opinion that no such right ever did exist in our law. Whatever authorities may be quoted for any such proposition, it has always been subject to this condition: that where she has a complaint of, or is apprehensive of, ill-usage, the Court will never interfere to compel her to return to her husband’s custody. ”

“ In one state a distinction has been drawn between personal rights of the parents and the interest of the state in the welfare of the child: unless there is an allegation that the best interest of the child requires a change in custody, the parties will be bound. ”

“ A child awaiting trial should on no account be sent to prison. If safe custody of the person is essential, some grown person in whom the court has confidence must be made responsible for the care of the child. ”

“ He may be detained, but only until he is 21 years of age. The court is admonished by the statute to give preference to retaining the child in the custody of his parents 'unless his welfare and the safety and protection of the public can not be adequately safeguarded without * * * removal.' The child is protected against consequences of adult conviction such as the loss of civil rights, the use of adjudication against him in subsequent proceedings, and disqualification for public employment. D.C.Code §§ 11-907, 11 915, 11-927, 11-929 (1961) . ”

“ Wives restrained by husbands, children withheld from the proper parent or guardian, persons held under arbitrary custody by private individuals, as in a mad-house, as well as those under military control, may all become proper subjects of relief by the writ of habeas corpus. Obviously, the extent and character of the restraint which justfies the writ, must vary according to the nature of the control which is asserted over the party in whose behalf the writ is prayed. ”

“ Willful abandonment of a minor child, leaving it in a dependent condition, is a misdemeanor. [5] The mere loss of custody by the father does not relieve him of his obligation to provide for maintenance and education, even where the custody passes to the mother pursuant to a decree of divorce. [6] If the father fails to make such provision, any person (including a divorced wife) who furnishes necessaries of life to his minor child may recover from him therefor, unless precluded by the terms of the decree in the divorce suit or otherwise. ”

“ Thus, the victim's mother not only was emotionally involved with the case, but she was also scheduled to be a material witness at the trial. Id. Moreover, she stood to gain custody of the child if the defendant was convicted. ”