Every evening, Wilmington daily commercial., 1906-03-24
MRS. cAprLLE KEEPS oH1Lp.

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Court Refuses to Give George N. Maris the
Custody OF His -Four -years-old Daughter.
The habeas corpus proceedings insti-
tuted by George n Maris for the custody
Of his daughter Ruth B. Maris, from her
grandmother. Mrs. Margaret A. Capelle,
which was heard in chambers about a
week ago. was decided this morning by
the court refusing 10 take the child from
the care Of the grandmother.
Ruth is about years old and has been
in the care OF her grandmother since she
was "a baby.
Howell 5. England was counsel for the
petitioner and Anthony Higgins and
Harry Emmons for the respondent.
In giving the decision Of the court
Chief Justice Lore said:
"In this haheas corpus proceeding,
George n. Mans, the petitioner, asks for
the custody and control OF his minor
/ child. Ruth B. Maris, who. he alleges, is
unlawfully held and restrained Of her
liberty by the respondent Margaret A.
Capelle.
Es''It seems from the evidence that in
October, 1892, the petitioner married
Margaret b. Capelle. the daughter of
Alexander A. Capelle, deceased, and of
his wife, Margaret A. Capelle, the respond
ent. The petitioner and his wife lived
together until December, 1902; during
which time two children were born to
them, viz, Margaret A., born September
9th, 1894 and Ruth b., (the subject of
these proceedings), born July Doth, 1902.
In December, 1902, the petitioner
broke up housekeeping, and his wife and
/ their two children, Margaret and Ruth.
with the consent and appreciation Of the
| petitioner, went to live with his wife's
/ parents above named, at 906 West street
/ in this city. They continued to live there
until the death Of the wife. April 2Sth.
| 1904. Just before her death. the wife
Of the petitioner requested Of her husband
that the children should continue to live
with and under the care and control Of her
parents, with whom they were all then
living. To this request the petitioner
made no objection, and the children con-
tinued so to live with their grandparents
until June 22d, 1905, when they both
went to the home Of their father, the
petitioner. Margaret, the elder, has re-
mained with her father until the present
time, but Ruth was returned TO her grand
parents, July llth, 1905, by her father
the petitioner who, under his hand,
stated that he was willing that Mr.,
Capelle should take Ruth absolutely under
his care and control. Under these cir
cumstances Ruth has remained with her
grandparents up to the present time
'F'rom these undisputed facts, it ap-
pears that Ruth, with the approval both
of her father and mother, has been under
the care Of athe respondent from Decem-
ber 1902 up until the commencement of
these proceedings, with the exception Of
10 days in June and July of 1905, when
she was home with her father, as above
stated. During all that time she has been
maintained, controlled and cared for by
the respondent and her husband up to
the death of the latter, February 22d.
1906. Since the death Of Ruth s mother
the respondent has stood in the place of
a mother to the child. There seems to
have sprung up between them a tender
relation and strong affection. The re-
spondent has become attached 10 the
child by reason Of natural ties and af-
fections and the peculiar conditions Of
the case. II appears that the respondent
is amply able and willing to care for the
maintenance, nurture and education OF
the child, thus entrusted TO her for nearly
four years last past by both parents.
1T appears, therefore, that the con-
ditons above stated have grown out of
the acts and agreement OF the petitioner
himself The child, a girl Of less than 4
: years old, is of that tender age that calls
especially for the sympathy care and
teaching Of a mother. In this case the
grandmother comes perhaps the nearest
to filling that want.
"Much stress has been laid upon the
common law rule, that the father has the
paramount right to the custody Of his
minor children. While we recognize this
as a general rule il is subject to modifi-
cation by the particular facts and circum-
stances of the case. While not alone con
elusive, the interest OF the child is an inn
portant factor in the determination Of the
question, whether the father should be
given the control Of the child
Having this rule and its modification
in view, after a careful consideration of the
facts in this case, we have concluded that
the relations heretofore established be-
tween the petitioner and the respondent.
with respect to the child, should not be
disturbed, and that the custody and con-
troll of Ruth B. Mars ought not to be
taken from the respondent
ut is, therefore. ordered by the court
that the custody and control Of said minor
Ruth B. Maris, shall remain in the re-
spondent. Margaret A. Capolle; with the
right, however, in the said George n.
Maris, and his daughter, Margaret A..
and his father, mother and sister. 10 visit
the said minor at all seasonable times and
places"
Court adjourned until Monday morn
ing at 10 o clock.