The record-union., 1899-09-29
THE FATHER GIVEN CONTROL
JUDGE HART DECIDES MORLEN
CHILDREN'S CUSTODY.
Says No Third Party Can Hold
Them Against the Consent
Of a Parent.

William E. Morlen appeared in Judge
Hart's court yesterday with r. L.
Clarken, his attorney, to listen to the
decision of the court as to his right
to take his children from the Orphan
Asylum, where they had been placed
by their mother, the couple having sep
arated and he having brought habeas
corpus proceedings to gain possession
of them.
Following is the text of the decision
rendered by Judge Hart:
The petitioner, father of the minors
Jessie May and Byrl Morlen, seeks in
this proceeding to obtain the custody
of said minors, now and for several
months past in the care and control of
the Sacramento Protestant Orphan
Asylum.
The facts briefly stated, are as fol-
lows: The petitioner, VIM. E. Morlen,
and the mother of the children, We're
living together in the town Of Gait, this
county, up to June or July, 1899. Do
mestic difficulties arose between them
which resulted in a separation, the
wife deserting her home and taking
with her the little girls, the right to
whose custody is here in dispute, and
the father (petitioner) subsequently
leaving his home with their young
boy, going to Napa County, where the
latter was placed under the care Of
petitioners sister. The mother, upon
arriving at Sacramento, consummated
arrangements for placing the girls in
the custody of the Orphan Asylum,
where they have been ever since. The
mother then, according to statements,
rather hearsay in their nature, made III
court, sought employment at Chico, at
which place she was engaged as a SER
want in a hotel or restaurant at the
time of the commencement of this pro-
ceeding.
The petitioner, after the departure Of
his wife from their home with the girls.
proceeded in an effort to ascertain the
whereabouts of his children, and finally
found them in the Orphan Asylum, as
heretofore stated, and, upon the re-
fusal of the authorities of said insti-
tuition to deliver the children over to
his custody, instituted this proceeding
There was some evidence given bear
ing upon the relative fitness and un-
fitness of the father and mother to
have the responsibility of the care and
nurture of the minors, and while this
evidence was heard in the absence of
the mother or her attorney who if
present, might possibly have thrown a
slightly different aspect upon this
| phase of the record by a cross -exanli-
| nation of the witnesses, yet the man
ner in which this testimony was given,
| together with the evident respectable
| character of the witnesses convinceS
me that there have been certain acts
and conduct of the mother of the chill
dren during the last few years OF her
marital relations with petitioner which
would not enable her to pass muster
as wife upon such a test or standard
as was insisted upon by the lamcnted
Julius Caesar! It is, however, due the
| mother of the children to say that
there We're some things testified to
concerning her conduct which might
be satisfactorily explained and from
which no inference, derogatory OF her
| character as a wife and mother. could
justly be drawn. But, upon the whole.
II what the witnesses said about her
! be true, it would undoubtedly comport
with the best policy to place her youth
full and now innocent offspring where.
under the circumstances, it would be
natural to suppose they will receive a
different and, morally, more whole
some kind Of training and diseipline
than that which the evidence shows
she would be capable of giving them.
Counsel for the mother contends
however, that in this proceeding testi-
mony relating to the fitness or unfit
ness of the mother to care for her chill
| dren is neither proper nor pertinent
that. such evidence would be relevant
only in divorce or other proceeding
in which the marital and concomitant
rights of the parties are made direct
issues. Counsel also contends that, in
asmuch as under the law of this State
| (Sec. 19S, ct seq. of the Civil Code
neither the father or mother has any
right over minor children superior to
/ those OF the other, the wife in this
case had right to take the children
and, when she placed them in the or
phan asylum, she constituted that in
stitution her agent, and that it's GUS
tody of the children was her own. Rea-
soning from this premise, he contends
that the court Is powerless, under tbs
law, to make an order otherwise than
that Of remanding them, because an or
der releasing them would be taking
them from their mother, who is, as
has been seen (disregarding the evi-
dence Vhich has been introduceO
equally entitled with their father to
/ their custody.
1 shall not here attempt to say
whether CIR not in a habeas corpus pro-
ceeding evidence such as was heard
by the court, and against which coun-
sci inveighs, is proper. For the pur-
poses Tor which this writ was issued
and the determination of the real ques-
tion in dispute, / hold it to be imna-
terial whether such evidence was 0,
was not pertinent or heard The only
question here to be adjudicated is, in
my Judgment, whether or not a parent
in the absence of any divorce or other
civil proceeding in which the care and
custody of the minor children have
been awarded to some certain individ
ual by the court, is entitled, as against
third person, to the custody Of his
| minor issue. / do not favor the idea
| suggested that one parent separated
from the other without any legal pro.
ceedings authorizing it has a right Il
take the minor children and place them
into the custody of whomsoever he
pleases. In other words, / cannot in
dorse the proposition that a mother (ol
father has any authority, deducible
| from either law or morals, to estab
lish against the wish of the father al
agency whose scope is the care, Gus