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PARENT AND CHILD - GUARDIANS.

(Cuyaboga Probate Court.] IN RE MINORS OF CHARLES AND ANNA LUCK. 1. AGREEMENT AS TO RELIGIOUS TRAINING OF CHILDREN.

An agreement entered into by a non-Catholic at the time of his marriage with

a Roman Catholic, that the children born of such marriage shall be brought up in the Roman Catholic faith, or a similar agreement in respect to any religious denomination, in a controversy between the father and mother as to custody and education of such children, creates an estoppel of the father's right to direct the course of religious training so provided for, and he cannot be heard to say that the well-being of the children demands the violation of

such agreement. 2. Such ESTOPPEL NOT ALLOWED IN CONTROVERSY BETWEEN RELATIVES. But after such agreement has been annulled or disregarded by the father as

surviving parent, having custody of the children, and for years, since the death of the mother, the nurture of the children has been away from such training, no such estoppel, upon the death of the father and in a contest between relatives of the father and mother, can be allowed to prevail over

conditions which may materially affect the welfare of the children. 3. RULES APPLIED.

Under circumstances above stated, where it appears that the mother's relatives

seeking guardianship of children of the ages (at date of application) of six
and seven years, made no application therefor until more than four years
after the mother's death, and that the children have grown into the affections
of the father's relatives, with whom they have been allowed to remain, and do
preponderating circumstances appear establishing that the best interests of
the children will be subserved by a change, they should be allowed to remain
with the father's relatives although under such guardianship their religious
training will be in violation of the marriage agreement above referred to.
APPLICATION for appointment of a guardian.
1 Vol. 10 S. & C. P.

2

OHIO CECISIONS.

Vol.

Cuyaboga Probate Court.

WHITE, J.

On September 6, 1899, Philo M. Klink made application in this court to be appointed guardian of William Leroy Luck, seven years of age January, 1899, and Lily Luck, six years of age November, 1898, the orphan children of Charles and Anna Luck both deceased. On September 12, 1899, Mary Luck, present widow of Charles Luck, made a like application for guardianship, which application was afterwards withdrawn by the applicant. On September 19, 1899, Daniel Scanlon made application for the guardianship of the same minors. The two applications, after due notice, came on to be heard jointly, and have been fully heard before the court upon testimony offered by both parties and arguments of counsel.

The cases presented on these applications, and upon the evidence, and in view of the unusual facts and circumstances, are of great interest and are not easily determined. There are no duties which the probate judge is called upon to exercise of a more important, delicate, and anxious nature, than that of appointing guardians for minor children.

There are several causes which concur in making such cases of grave and serious importance. The destiny and future usefulness and prosperity of a child, possessed of infinite possibilities, is to be affected in no small degree by the judgment of the court.

Another element which makes such cases oft-times delicate and difficult, is the fact that the strongest affections and feelings of love are excited in those interested in the guardianship. The ties of consanguinity are decided factors in the situation. The action of parties is sometimes based upon the blind and unreasoning impulses of aftection, an attachment which is wholly laudable in itself, but never benefits the calm and dispassionate temper and spirit in which the court must fully consider and determine the case.

All these elements and circumstances in a very great degree, enter into this case. These children, William Leroy, and Lily, are double orphans, and are of tender years, and their choice as to their future custody cannot greatly aid the court in coming to a correct conclusion. They are, however, very fortunate in having relatives by blood upon both sides of the line, who are desirous of assuming the responsibility and care of their nurture, support and education. Not all orphans are so fortunate as these in this respect.

In all ordinary cases for the establishment of the guardianship of the person of a minor child, the policy of the law has been well settled. This policy requires the court to make the present and future well-being of the minor, the paramount and controlling consideration in the case. The law books are full of judicial authority and admonition upon this point.

The right of custody by nature or nurture vested in any person is not, of course, to be ignored, but the right even of the parent must

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yield, in the proper case, to this dominant and paramount duty of the court to keep ever in view what constitutes under all circumstances, the best interests of the infant. But what is meant by the best interests of the child? Certainly the expression does not confine itself to its mate. rial and physical well-being alone. The court performing the responsible duty of establishing custody, shows entire unfitness to discharge it, by failing to recognize the fact that the child is a human being, with the most far-reaching, undeveloped possibilities of mind, heart, and charac. ter, affecting its destiny indefinitely in the future.

The nurture of a child properly considered, is in no wise confined to its temporal and material support and maintenance, embracing feeding, clothing and caring for the body. Neither ought the child's prospects for worldly prosperity or future to be balanced against that far higher and nobler opportunity, which the child may have for intellectual and spiritual nurture and cultivation.

Property considerations must receive their due weight, but the prospect for future business and pecuniary success must not shut out the possibility of achieving those more important and exalted ends, upon which the future happiness and highest success of the child may depend.

The parents of these children, Charles Luck and Anna (formerly Scanlon) were united in wedlock on June 16, 1889.

Anna Luck departed this life about four years ago, and Charles Luck died about three months ago, surviving his wife and the mother of these children about four years and upwards.

Charles Luck was a non-Catholic in religous persuasion, but whether a member of any church of any Prostestant denomination, the testimony does not disclose. Anna Scanlon was a Roman Catholic by ancestry, birth, ed:ication and religious persuasion, and was in good standing in the Roman Catholic church.

The marriage took place at Berea, O., and at her special instance and solicitation, in the Catholic church at that place; and as a preliminary to the marriage, a permit or dispensation was received from the Right Reverend Roman Catholic Bishop of the Diocese of Cleveland, to authorize the marriage in the church, Mr. Luck being a non-Catholic.

As a part of the hond of union between said parties, and in order that the marriage should take place in the church and receive the sanction of the church, the following agreement was signed by said Charles F. Luck:

Agreement to be signed by all non-Catholics wishing to contract marriage with members of the Catholic church.

“I, the undersigned, am not a member of the Catholic church, wishing to contract marriage with Anna Cecelia Scanlon, and proposes to do so with the understanding that the marriage bond thus contracted is indissoluble except by death; and I promise that Anna Cecelia Scanlon

4

OHIO DECISIONS.

Vol.

Cuyahoga Probate Court.

shall be permitted to freely exercise religion according to her belief, and that all children of either sex born of this marriage, shall be baptized in the faith and according to the teachings of the Catholic church. I further promise that no other marriage ceremony than by a Catholic priest shall take place.

“Charles F. Luck. "Signed in the presence of the pastor of St. Adelberts, this 16th day of June, 1889.”

Up to the time of the death of said Anna Scanlon Luck, the testimoney discloses the fact that the promises of this agreement were faithfully performed.

The children, now the orphans for whom guardianship is to be established, were baptized into the Catholic church, and Mrs. Luck, during her married life, attended faithfully to her religous duties and died in the Catholic faith.

The testimony further discloses that upon her death, Charles Luck openly, and with strong expressions of bitter prejudice, announced that said children should no longer be nurtured in the Catholic faith, using language that evidence a total disregard for the memory of their mother, expressing the most bitter and inveterate prejudice and hatred of the Catholic religion. He notified all his relatives, to use his own expressions, "the Catholic side is gone;" “the Catholic parent has gone now;" "I don't want these children brought up Catholics." He repeated these assertions, and indicated the strongest intention to utterly repudiate the promises that he had made at the marriage altar, and so solemnly subscribed, as a part of the consideration entering into his marital relations with Anna Cecilia Scanlon.

There can be no question but that this ante-nuptial agreement was based upon the highest and most sacred consideration, and is a covenant of the highest order and most solemn import.

As between the parties to this marital relation, when the wife was living, the binding force and inviolability of this compact would be recognized by all courts, and sanctioned by the moral sense of all mankind. Did it become dissolved and lose its force at the death of the mother of these chlidren, and how far should this agreement enter into the determination of the custody and guardianship of these children which were thus, by this solemn covenant, dedicated to the Catholic faith before they were brought into the world? This question has caused the court no small degree of care and anxiety in its attempted solution.

If this controversy over the custody of these children was between the father and mother, a court would utterly fail in its duty not to make this agreement work an estoppel of the father's right to divert the course of religious nurture so provided for. He would not be heard to say in such a controversy, that the well-being of the children demands its viola

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