The Progress., 1892-11-26
THE RIGHTS CT PARENTS.
\ Drunken Father Not Proper Guardian
Ior His Children.

Drunken athcr Not Proper Guardian
Ior His Children.
A curious question from Canada on
the law Of parent and child has recently
been decided in London by the judicial
committee of the privy council, which
is the court for the hearing and deter
mination of appeals in colonial cases.
The parties to the litigation were
Mr.. and Mrs. Smart of the province of
Ontario. Mr.. Smart, was addicted to
the use Of strong drink, and SO much SO
that Mrs. Smart found it impracticable
to live with him. She therefore left him,
and took with her the children of the
marriage, whereupon the husband en-
deavored to regain their custody by
means OF habeas corpus proceedings. All
the courts before which the case came in
the Dominion of Canada decided in favor
| of the wife. Under the laws or Ontario
the courts have express power to dispose
| of the custody Of minors under twelve
years of age, with exclusive reference
| TO the welfare Of the children themselves,
but the question was whether this
| authority extended to the children over
the age of twelve. The Canadian tri-
| bunals decided that it did, and that Mr..
Smart was an unfit custodian.
The same view has been taken by the
| ;udoes who constitute the judicial COM
mittee of the privy council OF Great
Britain. They hold that "the modern
feeling as to drunkenness renders habit
nal intemperance an offense important
enough to be made the ground for dis
regarding the patria potestas, or pa
rental power. Under the law as thus
laid down, therefore, father who be-
comes an habitual drunkard is liable to
lose the right to the custody of his call
dren. -,
This result is in accordance with the
tendency of judicial decision In this
state and the United States generally.
A case which well illustrates the doc
trine of the New York courts in this
branch of the law is the matter of Wat
son. which came before Mr.. Justice
Daniels, of the supreme court, at spe-
cial term in Buffalo ten years ago. The
uarties were a physician and his wife
who had been married in 1865 and lived
together until 1876, when, by the hus
bands direction, the wife took their two
i. children and went to live with her owl
j relatives in the western part OF the
state, while he continued to practice
4 medicine in the eastern part, employing
a n housekecper to look after his house
hold. having determined to live no long
b or with his wife. In 1882 he applied Il
c the court to award him the custody o
the children upon proofs shaving tha
he was able to support and care 10
b them and that his general moral char
acter was good. One child was a bo.
fourteen ye1rs OF age; the other girl o
G sixteen. The mother had acquired sue
i a knowledge OF medicine herself as Z
earn an income by her practice as
} physician sufficient to PROVIDE tnel
l. with a comfortable maintenance and
, rood education. The boy was not Il
robust health and the girl needed
e mothers care. Under these clrcun
y stances Judge Daniels declined to trans
J. fer them to the custody OF the father
He had sen. them away from his nom
n when they were comparatively helpless
It without being justified or excused py an
II misconduct on the part of his wife, an
(. the court declared that it would be az
inc wrong to give them back to him.
n Every well considered decision on tn
10 subiect emphasizes the welfare OF "a
II child MS the test by which to determir
to whom its custody should be AWARDED
I-New York Sun.