The morning times., 1897-02-21
FROST DENIED HIS CHILD.
Mrs. Fleck Made the Guardian
of Little GOidie.
AN INTERESTING DECISION
A Putative Father Has No Legal
Child-The Happiness of the
Minor Must Constitute the Para
mount Consideration.


the custody Of the child, who is remanded
TO the coatrol OF Mrs. Elizabeth Fleck, of
the Bruea Homa.
The opinion was rendered by Judge G. C.
Cole in habeas corpus case brought By
Frost against Mrs Fleck. The childs
mother, Margaret Collins, otherwise known
as Margaret Frost died at Garfield Hos
pital last December.
Judge Cole held that neither Mrs Fleck
nor Frost had legal right to the custody
OF Golde, but that she is the ward OF the
court.
The opinion recited the facts concerning
the Frost and Collins family, say aying:
I'm 1888 Margaret Collins or McKenna
became acquainted with the family OF Frost
by occupying apartments in the same house
with them. He and the Collins woman
commenced living together in the spring
of 1889. In the summer of the same year
they went to live with Frost mother, and
joined in representing that they were mar
ried. After living at Mrs. Frost's for some
time they took other apartments and con
tinued to live together until the 4th OF
March, 1895.
THE maiden name of Mrs Collins was
Burroughs. She married and lived with
dren. January 26, 1885, Mrs Collins
married man by the name OF McKenna
and lived with him until late in the year
1887, or early in 1888. Whether Frost
knew OF this marriage at the time lie
commenced living with this woman, or
at any time during the period he lived
with her, is uncertain. He did know,
however, that she had four daughters by
l,c r;a ba
one or more OF them personally.
ION the 2Sth of April, 1891, after
Frost and the woman had been living to-
gether about two years, the child. Goldie
Marie, was born. On the. Sd day of
August, 1892, marriage ceremony was
performed between Frost and Mrs. Collins
in st. Aloysius' Church, by priest OF
that church, and soon afterward the
child was baptized in the same church
by the name OF Goldie Marie Frost There
was no license authorizing such ceremony
OF marriage, and no publication thereof,
and the same was kept secret by the
clergyman at the request of the parties.
Frost has given no reason why he de-
sired the marriage ceremony kept secret
ION the sth day of March, 1898, they
separated and formed an agreement that
1OIulc SuOuiQ De lIdCtl III IL iNOIisdH
Catholic orphan asylum, namely, st, AIMS
Infant Asylum. In April OF the same year
Frost filed a petition against the mother
OF the child, asking a divorce and the
custody of Marie. In an amended peti-
ton, Frost charged her with adultery, and
a few days afterward made oath in the
police court that she was guilty OF bigaHy
in marrying him whiler McKenna was
alive She was indicted for bigamy in
May, and after two trials, acquitted, but
IN order was passed for the anullment OF
the marriage, declaring it void on the
ground OF the prior ma Triage with Nc
Kenna. The court awarded the custody of
the child to Mrs. Frost, who placed ii in
the care Of Mrs. Fleck of the Hope and
Help Mission, or Crittenton Home, but
who is now the superintendent OF the
Bruen Home.
The evidence shows that Mrs. Fleck
is cultured Christian woman, who treats
the child with kindness and affection, and
that the child reciprocates that affec-
ton was shown by the evidence OF several
witnesses, and also so appeared TO the
court from the conduct OF the child toward
her at the hearing. The child is un-
doubtedly happy with Mrs. Fleck.
The court observed the enid in the i'm
mediate presence of the relator on several
occasions during the hearing, and did not
notice il give him any look or act Of recug-
milton in passing from Mrs Fleck to others
in the room; it passed near enough TO the
reIator on several occasions to have touched
him. but did not notice him, and on one Gay
of the hearing was in his immediate pres
ence for an hour or two, and was permitted
to go where it liked, but it did not ap-
proach or notice him at any time. Whatthe
court observed during the hearing created
the belief that the child had entirely for
gotten the relator, Frost, and was not suf-
fering in it's affections by its separation
from him.
1T was proved that the mother, after
separating from the relator, always de-
cIared that he was not the father. and
manifested a great aversion to his having
the custody or anything to do with t. but
in the contract of separation she expressly
recognizes the child as his. and while, under
the evidence there is serious doubt about
the paternity of the child, he should be con-
sideredin this proceeding as the father. IL
was claimed that although this child was
born out OF wedlock it was legitimuted
by the subsequent marriage OF the father
and mother, put in order to legitimate the
child there must have been legal, valid
marriage. There wasnone in this case The
court in the proceedings for the anullment
of the marriage. declared it absolutely
void, so the child was not legitimated by
that ceremony.
''If the relator be in fact the father OF the
child, the law does not recognize him as
sUch but treats him as the putative father
thereof.
''It was claimed that the putative father
of child born cut of wedlock is at common
law entitled to the custody Of it as against
all persons except the mother The
great mass of authority, however, is
that the putative father has no legal right
or claim to the custody of the child at
common law which is in force in this
District upon the subject. The result
of the authorities is very clearly and
forcbly stated in this wise: the welfare
and happiness of the child itself constitute
the paramount consideration in the de-
termination of controversies affecting it's
custody
Would change of custody from the
respondent to the relator be present adj
vantage to the child? The relator is living
with his mother and sister, and it may be
inferred that If the child should be placed
in his custody he would take it to live with
them, though no one SO testified at the
hearing, and neither the mother nor the sis
ter said that the child would be received
into the family, and their willingness to
receive it is matter of inference. Sup
pose the custody should be committed to
the relatOr, and he ShOuld take the chilli fo