Orleans independent standard. [volume] (Irasburgh, Vt.) 1856-1871, 1860-09-21

slider and review. But in this case more
especially, whatever order or decree the
court may now pass must now be tempo
rary. The child is only transiently |
here. The father, who has bis legal Gus
todv. is domiciled in another State. He |
has the right to remove the child TO his
home; and probably intends soon to do
so. And any order of this court can
only cover the period while the father
and the child remain within its jurisdic-
ton. In Maryland they would not be
affected by it; nor if they should return
to Massachusetts would it be hereafter
conclusive.
The real and only question then is
whether on the facts now in proof, 1t is
the duty of the court in the exercise of
sound judicial discretion to PASS an or
der directing the father to give the moth
er access to the child, during this present
time, while it is temporarily within this
iurisdiction-an order temporary in its
nature-not for the child's minority, but
only for the present period, this summer
or season.
The rule to guide the discretion of the
court is given in the General Statutes,
ch. 10Y, S 81, as follows :-"In making
an order or decree relative to the custody
of children, pending controversy be-
tween their parents, or in regard to their
final possession, the rights of the parents
in the absence of misconduct shall be
held to be equal, and the happiness and
welfare of the children shall determine
the custody or possession. That this
, means the permanent and not the tempo
rary welfare and happiness of the child
the court need not stop to show. 1t is
not what viii please or crafty the child
5 for day or an hour, which is to govern
: the court, but that which, looking to its
: previous condition and to its future con-
r tinued residence, will contribute to its
: permanent happiness and welfare. A
e child may desire injurious food or sport
: which will give immediate enjoyment and
\ happiness, but afterward pain and sick
j ness. Looking then at the fact that this
s child is for the present to reside with hi:
|. father, and to be subject to his care, con
f troll, and discipline, what Gas to his moth
It er's having access to him) is for his per
), manent welfare and happiness.
e In answer to this question it is the du
a ty of the court to shut its eyes to all sym
pathy with either mother or father, ant
e to regard the permanent welfare of th
: child alone. Mainly, those facts are t
'e be considered which have occurred sine
sr the making of the agreement of Dec.
10 1859. This argument is only evidenc
is of the opinion of the father and mother a
Of the time of its execution. While it is nc
i'd binding on the court in any respect, but o
ar the contrary it would be the duty of til
lie court to disregard it if the welfare of tn
D. child required it; yet as evidence of tn
e. views of the parties executing it, at tn
e. time of execution, it is certainly entitle
re to weight.
II Here it should be said that no leg;
at evidence has been offered tending
be show anything like immortality of cor
s. duct on the part of the mother. Fc
IL aught that has legally appeared or th
court can judicially know, she is pc
as fectly yirtuous, chaste, and moral perso
he Only one fact is proved which bea
lis against her. On her own confessit
bv and without any cause, so far as
shown, she deserted her husband for
he series OF years and deprived him n
err only of her own society, but that of
" child. So that since the child becar
he capable of forming attachments, he b
ice until very recently had no opportuni
,er of knowing his father and acquiring tt
nor respect and affection for him that Oh
would naturally have towards a cons
tb entious and faithful parent. To this {
&c tent the mother is clearly in fault.
the The general rule which should COVE
the the court in question of this nature v
was correctly stated by the counsel for the
lty. titioner. PrinaG .facie, a mother is Ell
, of tied to have access to her child whom
,ru- law places in the custody of the faith
,rds The general rule is that the welfare a
the happiness of the child requires this.
! of this rule there are exceptions. TAX
as starting point, then, the time w
,en- the child went to live with his father,
ia March last, has any thing transpi
which makes it the duty of the co
tino regarding only the welfare of the CT
inu- to refuse to pass an order making it
curt ligatory on the father to allow the mot