Los Angeles herald., 1892-11-11
SARGENT IS TO KEEP HIS CHILD,
The Conclusion Of a Notable
Trial Yesterday.
Cases Which Were Considered in the
Circuit Court.
The Decision in Gaze Involving the
Home of q Child-NOtes of Suits in
the Courts Yesterday-Mar-
riage Licenses.

JuoSo OuaW yestcIudY uhuucu uoWI
his decision in the celebrated case o
Sargent vs.. Sargent. The suit was the
possession of the 13-year-old daughter O.
the contestants.
The following is the decision of the
court:
The evidence in this case fails to es
tablish the averment that the plaintiff
is an improper person to have the care,
custody and control of his daughter. On
the contrary shows that he is an exem-
plary citizen OF intelligence and morality
and as fit to have the custody of the
child as any father would be. The
mother is also proper person to have
the custody OF her child. The child
would doubtless be well cared for and
properly trained if committed to either.
The first inquiry should therefore be as
to the legal rights of the parties. The
defendant does not in her answer show
any legal excuse for living apart from
her husband. The facts she alleges do
not constitute sufficient reason for the
separation. The civil code provides as
follows:
Section 103. The husband may choose
any reasonable place or mode of living
and if the wife does not conform thereto
it is desertion.
Sec 96. -. The refusal of either
party to dwell in the same house with
the other party when there is no Just
cause for such refusal in desertion.
Sec. 1856. Husband and wife contract
towards each other obligations of mu-
tual respect, fidelity and support.
Sec. 156. The husband is the head of
the family. He may choose any reason
able place or mods of living and the
wife must conform thereto.
Sec. 157. Neither husband nor wife
has any interest in the property OF the
other, but neither can be excluded from
the others dwelling.
Sec. 1876. The parent entitled to the
custody of child must give him sup
port and education suitable to his cir
cumstances.
Sec. 1877. The father of legitimate
unmarried child is entitled to it's Gus
tody, services and earnings.
Sec. 1893. The husband and father, as
such, has no rights superior to those of
the wife and mother in regard to the
care, custody, education and control of
the children of the marriage while such
husband and wife live separate and
apart from each other.
Sec. 246, sub. 2. As between parents
adversely claiming the custody or guar.
dianehip, neither party is entitled to it
rs OF right; but other things being
equal, if the child be of tender years, it
should be given to the mother; if it be
OF age to require education and prepara-
tion for labor or business, then to the
father.
1t will be seen from these provisions
that the defendant will be in the wrong
if che refuses to live with the plaintiff.
She is now living apart from him, ap-
parently under the impression that che
has right to do so as under the provis-
ions OF the agreement set forth in the
complaint. That agreement, has, how
ever, been revoked, and must be can
celed. l cannot presume that when
that is done she will continue in the
wrong by refu sing to live with her hus-
band. He evinces an entire Willingness
to have her return. He has the right to
choose the family residence. She must
conform thereto, and he cannot exclude
her therefrom. If the custody of the
child is given to him she will lot be
separated from the child by any act of
the court, nor by any act of her hus-
band. If there is separation it will be
of her own voluntary act, done without
excuse or justification.
Under such circumstances 1 do not
think the child should be taken from the
one who is without legal fault and given
to the one who is in the wrong.
1t may be added that the child is not
of tender years, but is of an age to re-
quire education, for which the father
must provide, and that it appears that
the mother has no means. If she refuses
to live with plaintiff he will be under no
obligations to support her, and the
child, if left with her, will be without
means of support or education.
For these reasons am of the opinion
that the custody of the child should be
given to the father.
A decree will be drawn accordingly.