Herbstman v. Shiftan

108 N.W.2d 869, 363 Mich. 64, 1961 Mich. LEXIS 424

• Court: Michigan Supreme Court
• Decided: April 26, 1961
• Docket: Calendar 48,599
• Status: Published

Opinions

Kavanagh, J.

This is an appeal by certiorari on leave granted from a circuit court order denying a father’s petition for writ of habeas corpus to recover custody of his daughter, Hanna Herbstman, who, at the time of the filing of the petition in August, 1959, was 4 years old.

A hearing was held on the petition in the Jackson cóúrity circuit court. Testimony disclosed that Herbstman’s wife died at Hanna’s birth in Israel in, 1954. Herbstman and his wife were refugees ijr'om Nazi Europe to Israel. - After his wife’s death, Mr. Herbstman, having no one to look after Hanna, placed her in a children’s home in Israel.

1 Tn:June,' 1956, at the invitation of defendants Erwin'Shiftan, Hanna’s maternal uncle, and wife Bernice,..Herbstman came to the United States bringing hisl ¿ children — -Hanna, 1-1/2 years old,'and Ludwig, • age 8. The 3 came to the Shiftan home in Jackson, 'Michigan. Appellant was a tailor by trade ahd found employment in a clothing store in Jackson fbr a short' period of time. He then went to New York City, where his brother resided, an.d found employment there. He left Hanna with the defendants,'but took his little boy with him to New York. On January 25, 1958, he married his present wife, and-after establishing a home he informed defendants he desired to take Hanna to New York. Appellant was first asked to let Hanna stay with the Shiftans until Mr. Shiftan completed a trip to Europe in the summer of 1958. Later, they asked hé extend this time until after Christmas. Numerous attempts were-made by petitioner to obtain his child. The Shiftans expressed verbal willingness that Hanna should return to her father, but it appears from the record they had become very attached to her and could not give her up.

The trial judge found there was no agreement for adoption or permanent custody of Hanna; that instead she was to remain with her aunt and uncle only temporarily and until her father could establish a home. The trial court further found as a fact that appellant appears to be a good man; that the home in New York City, as far as size, seems to be adequate; and that the testimony showed the ages of appellant and his wife and appellant’s earnings and residence were at least equally favorable for raising Hanna as those of the Shiftahs. The court further found he was not convinced the best interests of the child would be served by giving' the farther custody. He based his finding upon the following facts: The Shiftans have raised the child well without help from the father ;■ the father made’only 3 visits to see his child in.3-1/2 years; the' child’s love for her present home and the Shiftans’ love for the child; the character and reputation of-the present Mrs. Herbstman are unknown; taking the child from her present home and placing her in< congested New York City would not be for the best, interest of the child; the suggested drugging of the. child on one occasion showed an inhuman attitude.

It is a well-established principle of law that the parents, whether rich or poor, have the natural right', to the custody of. their children. The rights of parents are entitled to great consideration, and the court should not deprive them of custody of their children without extremely good cause. A child also has rights, which include the right to proper and. necessary support; education as required by law; medical, surgical, and other care necessary for his health, morals, or well-being; the right to proper custody by his parents, guardian, or other custodian; and the right to live in a suitable place free from: neglect, cruelty, drunkenness, criminality, or depravity on the part of his parents, guardian, or other custodian. It is only when these rights of the child are violated by the parents themselves that the child becomes subject to judicial control. A parent having-violated the rights of a child forfeits his right to the custody, control and upbringing of that child; and when the safety and best interests of the child demand it, the rights of the child must be protected by the court. In citing the above rights of the child, we áre not attempting to enumerate all of them, but merely to indicate the principle we have in mind. We believe it is these rights that the courts of this State and Other States have in mind when they speak of “the best interests of the child.”

The statutory' law of our State recognizes the parent’s right to his child. The statute, CLS 1956, § 703.6 (Stat Ann 1959 Cum Supp § 27.3178[206]), provides in part as follows:

“The father or mother of the minor, and if 1 of them be deceased, then the survivor thereof, being respectively competent to transact their own business, and otherwise suitable, shall be entitled to the custody of the person of the minor and to the care of his education.”

In the case of In re Adams, 214 Mich 199, 204, this Court, recognizing the father’s right to the child, said:

“The law makes him her guardian by. nature and for nurture, prima facie entitled to her care and custody.' Bearing in mind also the child’s best interests, the courts will primarily ‘feel bound to restore the custody where the law places it, with the father, unless in a clear and strong- case of unfitness on his part to have such custody.’ ”

In the case of Chevlin v. Tarner, 274 Mich 249, 251, this Court said:

“The mother seems now to he established in a suitable home and to be capable of taking and caring for her son. * * . * She has never yielded her legal right to the custody of this child. * * *

“That the child has been well cared for in the home of the grandparents cannot be questioned. * * * Primarily the mother is legally entitled to the custody of her 8-year-old child. * * * Relying much on the facts and reasoning in In re Goldinger, 207 Mich 99, the circuit judge found that the mother was entitled to the custody of this child.”

The Court affirmed the award of the child to the mother.

The same rule was followed in Greenman v. Greenman, 249 Mich 388. See, also, Burkhardt v. Burkhardt, 286 Mich 526; Riemersma v. Riemersma, 311 Mich 452, Shinkonis v. Johnstone, 312 Mich 199.

In Riemersma v. Riemersma, supra, 461, the Court quoted from the case of Burkhardt v. Burkhardt, supra, 535, as follows:

“ ‘The choice of a child of the tender age of 4 years cannot be considered by the court in its determination of what disposition shall be made of the,, case.’ ”

In the instant case it is admitted the Shiftans have provided well for the child. Although the record discloses the father made only 3 trips from New York to visit his daughter, he did write regularly and on several occasions sent her gifts. It is natural the child would be attached to her present home and to the Shiftans, since it is the only home she has ever known. The record discloses the present Mrs. Herbstman is willing and anxious to take the child into her home and give her proper care. To infer that it would not be for the best interests of the child to live in a proper home in New York City requires no answer. Certainly the lower court had no basis on the record to find the suggested drugging of the child indicated an inhuman attitude on the part of petitioner, any more than it would have been indicated on the part of Mrs. Shiftan. She testified a third party suggested giving the child a sleeping shot so that she might be brought to New York. No one attributed this remark to petitioner.

The reasons given by the trial court for dismissing the writ in the instant case are insufficient for denying custody to the father.

We conclude, on the showing in this record, that the father is a suitable person to have custody of his daughter and that he is legally entitled to such custody.

Other questions raised by defendants do not require consideration.

The order of the trial court dismissing plaintiff’s petition is vacated and set aside. The case is remanded to the lower court with directions to enter an order granting plaintiff’s petition and awarding him custody of his daughter forthwith. Plaintiff shall recover costs.

Dethmers, C. J., and Carr, Kelly, Smith, Edwards, and Souris, JJ., concurred with Kavanagh, J.