Andrino v. Yates

Citations

• 12 Idaho 618
• 87 P. 787
• 1906 Ida. LEXIS 82

Syllabus

<p>Habeas Corpus — Custody op Minor Child — Right op Parent — Relinquishment op — Welfare op Child — Examination of Child.</p> <p>1. The right to the guardianship of a minor cannot be tried upon habeas corpus.</p> <p>2. This proceeding was not for the purpose of setting the child free, but to determine whether the plaintiff was entitled to its custody.</p> <p>3. The jurisdiction of the question of the custody of a child under a writ of habeas corpus is of an equitable nature, and courts have large discretion in the matter.</p> <p>4. Under the provisions of section 5774, Revised Statutes, the parent is entitled to the guardianship of his minor child when he is competent to transact his own business and not otherwise unsuitable as guardian.</p> <p>5. The legal right to the custody of a minor may be abandoned or forfeited by the acts or conduct of the parent, and in such case he is equitably estopped from asserting such legal right.</p> <p>6. Where the legal right of the parent is not clear, the best interest of the child will govern the decision of the eourt.</p> <p>7. When it appears that a child has resided with its aunt from the time it was about two and one-half years old until it is nearly twelve years of age without having seen its mother, and that conditions are such, and made so by the acts of the parent, that-the care and custody of the child cannot be changed without endangering the happiness and welfare of the child, the parent has become, in the language of section 5774, Revised Statutes, “unsuitable” for possession of the child.</p> <p>8. In such cases the welfare of the child is the main consideration for the court.</p> <p>9. In cases of doubt and difficulty the court may examine the minor, when it is of sufficient age and discretion, as to its wishes and desires in the matter; not that its wishes must control in the matter, but that the court might more wisely arrive at a just conclusion in the ease.</p> <p>(Syllabus by the court.)</p>