Cohn v. Scott

83 N.E. 191, 231 Ill. 556

• Court: Illinois Supreme Court
• Decided: December 17, 1907
• Status: Published

Opinion

Per Curiam :

The great weight of the evidence in this record upholds the conclusion reached by the Appellate Court that appellee is, both by character and financial ability, a fit person to have the care and custody of his child, while the evidence as to appellant’s personal fitness tends to prove the contrary. In disposing of the custody of children the primary object should always be the good of the child. (Hewitt v. Long, 76 Ill. 399; In re Smith, 13 id. 138.) Parental example has great influence in the development of young children, and due regard should be had to the character and conduct of the parties in awarding children. (14 Cyc. 808, and authorities cited.) The good of the child is the leading consideration, to which the claims of all other persons must yield. (2 Bishop on Marriage and Divorce,—5th ed—pars. 532, 541.)

It is contended, however, that counsel agreed, after the evidence was heard in open court, that the chancellor himself should investigate the character of appellant and her home surroundings. It is very apparent from the record that he made no personal investigation. He expressly so said, but stated that from what he heard of the appellant’s husband he was satisfied the child would not be injured in any way if placed in the custody of the mother.

Appellant relies upon the case of Cowles v. Cowles, 3 Gilm. 435, as laying down the rule that it is proper for the chancellor who hears a proceeding of this kind to make a personal invéstigation and base his finding thereon. The part of the opinion relied on in that case was not necessary to that decision, and we do not think it bears the construction contended for by appellant. Even if it did, the chancellor in that case made no personal investigation outside of the evidence presented in court, and it is very apparent that the decision of the chancellor there, as well as the finding of the, court, was based upon the. facts in the record. While a very large discretion must be permitted the chancellor hearing these cases, yet it must be a judicial discretion and subject to- review on the evidence heard in open court. The agreement of counsel cannot bind as to the interests of the minor, which is the paramount question in this proceeding. If the chancellor could decide partly on investigation made out of court, then the whole decision might rest upon such an investigation and could not be reviewed. Such is not the law.

The evidence shows beyond all question that the best interests of the child required it to remain in the custody of the father. No obstacle appears to have been put in the way of the mother to visit her son in the past, and we see no reason on this record why the original order as to the custody of the child should be modified.

The judgment of the Appellate Court will be affirmed.

Judgment affirmed.