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THE RIGHT TO THE CUSTODY OF CHILDREN
BY GERALD A. LEE, M.A., LL.B.
The legal principles governing a parent's right
to the custody of his child have been settled and
enunciated in a series of cases running on parallel
lines in
Ireland and
in England down to the
establishment of
the
Irish Free State. These
principles were stated for this country by the
former Court of Appeal in the well-known case
of
In re O'Hara?
which has frequently been cited
with approval in both countries. That case has a
special value as an authority in that it was free
from the vital question of religion, usually of such
importance in the controversy between the parties
in these matters. In
O'Hara's Case
a widowed
mother, poor and
in domestic service, having
acquired a modest home by remarriage, sought to
recover custody of her little daughter whom she
had surrendered a couple of years previously to
a well-to-do couple to be adopted by them under
a written agreement.
Delivering judgment, Fitzgibbon LJ. outlined
the following settled principles of law:
1. At
Common Law, the parent has an absolute right
to the custody of a child of tender years, unless
he or she has forfeited it by certain sorts of mis
conduct; 2. Chancery, when a separate tribunal,
possessed a jurisdiction different from that of the
Queen's Bench, and essentially parental, in the
exercise of which the main consideration was the
welfare of the child, and the Court did what, on
consideration of all
the circumstances, it was
judicially satisfied that a wise parent, acting for
the true interests of the child, would or ought to
do even though the natural parent desired and
had
the Common Law right to do otherwise,
and had not been guilty of misconduct; 3. The
Judicature Act has made it the duty of every
Division of
the High Court
to
exercise
the
Chancery jurisdiction; 4. In exercising the juris
diction to control or to ignore the parental right,
the Court must act cautiously, not as if it were a
private person acting with regard to his own child,
and acting in opposition to the parent only when
i(1900) 2 I. R., p. 232.
judicially satisfied that the welfare of the child
requires that the parental right be suspended or
superseded.
This was accordingly, an accepted statement of
the main principles to be applied in the determin
ation of cases of this nature, apart from the special
question as to religion, and apart from any appli
cation to the case of the Custody of Children Act,
1891, which deprived the parent of his Common
Law right in certain circumstances. It was pro
vided by section 3 of this Act that where a parent
had (a) abandoned or deserted his child, or
(b)
allowed his child to be brought up by another
person at
that person's expense, or by
the
guardians of a poor law union, for such a length
of time or under such circumstances as to satisfy
the Court that the parent was unmindful of his
parental duties, the Court should not make any
order for the delivery of the child to the parent
unless the parent has satisfied the Court that,
having regard to the welfare of the child, he is a
fit person to have the custody of the child. (See
infra).
Referring to the natural right of the parent to
the custody of his child, Fitzgibbon LJ. said in
O'Hara's Case
(supra) at p. 240:
It appears to me that misconduct, or unmind-
fulness of parental duty, or inability to pro
vide for the welfare of the child, must be
placed. Where a parent is of blameless life,
shown before the natural right can be dis-
garded and is able and willing to provide for
the child's material and moral necessaries in
the rank and position to which the child by
birth belongs — i.e. the rank and position of
the parent — the Court is, in my opinion,
judicially bound to act on what is equally a
law of nature and of society, and to hold (in
the words of Lord Esher) that 'the best place
for a child is with its parent.'
A case which illustrates the kind of conduct
on the part of a parent which might be held to
prevail against his Common Law right to the care
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