
    Lilian E. Hadley, by her next friend, v. Mollie Forrest, Appellant.
    2 •Custody of Child: interest of child. A parent’s right to the custody of an infant child is not absolute, and will not be enforced when seriously detrimental to the interests of the child, which are the paramount consideration.
    
      1 3 ¡Same: Evidence. While petitioner was living apart from her husband in New Jersey, she permitted defendant to take her infant daughter, then 3 years old, to defendant’s home, in Iowa, for a year, after which it was agreed that defendant might again take the child and keep her until petitioner claimed her. Subsequently, the child’s parents were divorced, the decree making no provision for the custody of the child, and thereafter the father entered into an agreement with defendant by which she was to have the care of the child until he signified otherwise; and the child remained in defendant’s care about a year, until petitioner commenced habeas corpus for her recovery. Tha evidence showed that petitioner had no means or home, and that her character was such as to render her an unfit custodian for the child, while defendant was of excellent character and standing, and able and willing to give the child a good home and proper training. Held that, in the interest of the child’s welfare, the writ should be denied.
    
      Appeal from Clinton District Court. — IIon. P. P. Wolee, Judge.
    Thursday, October 11, 1900.
    This is a habeas corpus proceeding in which a mother' seeks to obtain the possession of her infant child. From a judgment depriving defendant of the possession of such child, she appeals.
    
    Reversed.
    
      Hayes £ Schuyler and Chase £ Seaman for appellant.
    No appearance for appellee.
   Waterman, J.

-John E. Hadley and May W. were husband and wife, and the parents of the infant in question. They were married on November 6, 1892, and the child was born on May 26, 1893. For a few months after their marriage they lived together, and then practically separated, although they cohabited together from time to time during the remainder of their married life. In the year 1896 the defendant, whose home is in Clinton, in this state, was visiting at Ocean Grove, N. J., and boarded at the same house whore Mrs. IIadley and her child were staying. Defendant and Mrs. IIadley became acquainted, and the former, taking quite a fancy to the child, asked permission to take it home with her to Clinton. After some time the mother consented to this, on condition that the child be returned to her when defendant came East in the following summer. This arrangement was carried out. Defendant took the child to Clinton, and kept it from' about September 1, 1896, until the summer of 1897. In August, 1897, having returned the child as she agreed to do, defendant, with the mother’s consent, again took it homo with her. Defendant was at all times solicitous to have the mother relinquish all claim to the child, but this she was not able to accomplish. When she took it the last time the understanding was that the mother should have it again whenever she desired. The child has remained with defendant since. In March, 1898, John E. IIadley obtained a divorce from his wife in the state of New York, hut in the decree nothing was said as to the custody of the child. After the divorce, defendant and John E. IIadley entered into a written agreement by which defendant was to have the care and custody of the child until the father signified otherwise. On March 17, 1899, these proceedings were instituted. Defendant is a very estimable lady, with a good home, and has the ability and disposition to care for and bring up this child in a most desirable manner. In cases like this the court should consider the interests of the child. Lally v. Fitzhenry, 85 Iowa, 49, and cases cited. The parent’s right to the custody of the child, while recognized and allowed strong weight, is not absolute, aucl will not be enforced when against the serious interests of the child. It is not meant by this that any person better able than the parents to provide for the Wants of an infant child may deprive the natural guardians of its custody; but we do mean to assert that the child’s vital welfare, present and future, is not to be sacrificed to the parent’s claim.

II. We turn now to the facts. They are not in serious dispute. So far as there is a controversy, we shall notice it in the course of what we have to say. The mother of this child was a professional dancer, appearing at times in music halls in the city of New York. After the separation from her husband she was upon the stage, though she says only for a short time, and, as we understand, claims to have now abandoned the profession. She has no home, other than boarding places, which are changed so often that she is at a loss to tell where she was living at any particular time within the past few years. Her address is, and for some years has been, the general delivery, New York city. Her husband obtained his divorce from her on the ground of adultery. She says this was by her collusion; that she was induced to make an appearance of guilt, and present no defense, in order that her husband might secure a divorce. She insists that she was guilty of no criminal act. We need not set out the facts. It is enough to say that no reason appears in the testimony why the wife should have been specially desirous for her husband to obtain a divorce. We find it difficult to believe that any woman would submit to be falsely decreed an adulteress, whose character was not already so stained as to make her indifferent to another blemish. We think this woman’s character,- by her qwn admissions, was such that she may well have been careless as to reflections upon her virtue. While a member of one Riley’s burlesque troop she was the subject of charges of some sort made by a mistress of Riley, in which her name was connected in a discreditable manner with that of Hiley. She admits that this got into the New York papers. Later one Mrs. Walton sued for a divorce from her husband, Dr. Alfred Walton, and made charges, not clearly defined in the record, but obviously of a scandalous nature, connecting Mrs. Hadley with her husband. She oven came to Mrs. Hadley’s boarding house on one occasion, and caused a scene. Mrs. Hadley, of course, denies any wrong doing with Walton; but she is.forced to admit that the intimacy continued after these charges were made, and she also admits having carried on a correspondence with Walton after her marriage. The character of her intimacy with Walton will appear from the letter which we set out. It was written by the doctor to her while she was on a professional tour through the West, evidently after her marriage. It bears no date:

“My Own Dear Love: Miles and miles away from home, for I truly feel that all you have on earth to live for is in New York. To you, the sole one aside from my children that I can truly feel that I love, to you I write to relieve me from my solitude, and to give solace and comfort to you, the object of my love and affection. I feel that you need to hear from me, and that my letters are always welcome. Well, dear, I received two of your clear, precious letters today, both in the same mail. I cannot account for that singular coincidence, but the fact remains I did. They were.both road with great interest, as in fact are all your letters; and let me tell you, dear, that you write very interestingly. I prize each little word, for they come from you. That, from some unaccountable reason, seems so much to me. Do you realize, dear, that in one of your letters you tell me to do so and so for the baby, as if I was the father of the baby and actually obliged to, and I obey as meekly as though you were present'? I am glad you have not as yet found any gentleman to take my place, but you have not been tempted. The temptation will not present itself until you are at work, —until you actually show yourself and are successful. Then it remains to be seen how you will stand temptation. Flattery gees a great way, even with a woman that foolishly claims that she does not care for men; and, my dear, you have not' as yet met men as you may possibly do later on, especially if you are successful. Don’t forget, Hay, that I am in New York and have every possible opportunity in the world to go around, and plenty of horses to catch on with, but I cannot forget my love away off in Denver. Come back to me, my dear, pure and good. God' has made you, dear, as pure and as good as any living woman that ever breathed the breath of life. Let me see by your manner, your conduct, and thought that you are not changed, oven though you work on the stage for a living. Let your speech and thoughts be pure and good. Your conduct, manner and speech should be of such a character as to present a barrier so firm that no man should feel at liberty to insult you. For some reason I cannot help having the greatest and most implicit confidence in you in every respect. Please do not do anything whereby you yourself cannot feel that you deserve such confidence, for I feel that you are pure in thought as well as in deed. Hay God bless and care for you, is my constant prayer. I am going to see baby tomorrow. Good night, my own true love. Kisses * *
Hrs. Hadley, by her own admissions, indulged at times in the use of intoxicating liquors. She says that she was temperate in their use, but at the same time confesses that in June, 1898, she was an inmate'of the alcoholic ward in Bellevue Hospital, New York, for treatment. We will now let this woman speak for herself, as to her own character, prefacing what she says with the statement that after the divorce, Hadley sent her money from time to time for the support of the child. Finding that but little, if any, of it was used for the child’s benefit, Hadley began sending the money direct to Hrs. Forrest, the defendant. Immediately after this Hrs. Hadley wrote her husband’s mother to this effect: , .
“Mrs. Hadley: I write you this so that you can save your name from another scandal (only a hundred limes bigger than any you had yet), and at the same time save me a lot of unnecessary trouble. You had better advise your son to give baby up to me at once; for she is not his child, and I can prove it, but belongs to me. There is only a little moré than six months’ difference between the date of our marriage and baby’s birth, so you can see he can’t possibly keep legally a child that' is not his own. You would not have him the laughing sioch of everybody, would you? I will stop at nothing to get my baby, and I am sure you would not find it very pleasant to have the name of Hadley in great big type in all the papers, and shouted from the housetops, and ringing in everybody’s ears; but I’ll get my baby, I tell you, if the name of Hadley is in every one’s mouth in the country; and won’t people ridicule and laugh,, tho’ ? Are you aware of the fact that he went to hotels with me ten or fifteen times between March 15, 1898, and the time the divorce was granted, and once after, and that he went up to my mother’s flat twice when they were all there, after March 15, 189.8, and talked the divorce over, and told how he got those men to go there? I can prove that it was collusion, and, if he doesn’t give up my child immediately, I shall have the divorce set aside and sue him for a separation and alimony. I can prove, also, that for the first four years of baby’s life he did not support her, and I have many letters (letters written five years ago, and several written within the past six months and three months) in which he says baby is not his child. I also have some letters written just before we were married which prove certain things, and I know that he would not like them to be shown in court or put in the papers, with their hny dear little love,’ and ‘I cannot give you up, dearest,’ etc., in- them, and telegrams, sometimes two or three a day> showing how he was running after me, and how I didn’t even answer his letter's. I will make liim the biggest fool for people to jeer at you ever heard of, and everybody will know about it; and he won’t have baby in the end, either. ‘A word to the wise’ is sufficient, or should be. Mrs. May W. Iladley, Gen’l Delivery, New York.”

March 15, 1898, spoken of above, is, as wo understand, the date when the divorce proceeding was begun. About this same time — perhaps a little earlier — she wrote the following letter, without date, to hex husband, who "was traveling for a house that dealt in wall paper:

“You dirty, rotten yellow dog, you! You dare to say you will send baby’s money to Mrs. Forrest, and not to me? You deceitful pup, you lying old cur, if you don’t have some money hero by Friday morning I will have your dirty name ringing all over the city. It will be a nice sequel to the other scandals. I’ll go to the Gilsey House, the Arena, the Grand Hotel, the hotel where Mills is (I’ll drag him in the case, too, and air his dirty clothes). I’ll go to every house in Hoboken, and I’ll write to every one you know and don’t knoio, and I’ll send for the Journal and World reporters, and tell all about your old hag of the mischief-making mother and your old drunken sister, and bring up that last news-girl scandal, and tell them why a little girl has to work to support hvo old drunks, and I’ll tell about your old sot of a brother, and I’ll tell them how you were so willing to have another man support your child for three years, and .where you wrote to me in black and while and told me to let him take care of baby, that you, didn’t- intend to, and where you talked about her little face, her nose, etc., and how, after forcing your wife, not half your age, to sacrifice herself for you, you dirty, rotten, yellow dog, you,, you now virtuously offer to send some other woman, not her mother ‘what you can afford’ to help take care of her, and the mother to send the rest. I’ll give them all your letters they want to copy, ivord for word, and print, and I’ll make it so hot for you you will wish you were dead. I’ll get a wall-paper directory, and I’ll write to every wall-paper manufacturer in the United Stales. I’ll write and tell Mrs. Forrest all about it, and how cowardly low you were to have the disgrace of the divorce fall on your loife and little innocent baby. I realize exactly noiw what you have done to me, and they will realize, too, what a cowardly loiv brute of a beast you are, and it will be in every newspaper in the city Saturday morning. They will only be too glad to get something besides war news in their papers — a scandal like this, —and they know how to write it up, too, "You gave your word of honor (tho’ I know noiu you haven’t any honor) that you would act fairly by me after the divorce, and you have to keep your word; I’ll make you. I will write to that firm (I have the address), and tell them how you bought champagne and charged it to them up in Troy, and tell them how you went away up to Syracuse. - * * Keep up the agreement you made with me before the divorce, or I will put you in the gutter (where all the rest of your family are). There is one thing more I haven’t told you of, or threatened you with, but that you shall not know just yet. There is time enough for that, you feather-brained old fossil, you. If you were not in your dotage you wouldn’t be such a fool as to act to me as you are now acting. Your letter has decided me on one point. I shall go immediately out West (that is, as soon as I have -finished with you), and take little baby away from Mrs. Forrest. How dared you say you will send money to her, a stranger, and not to me, her mother, who has loved her all hér life and suffered for her? You miserable brute, how dared you? I shall teach baby to hate and curse you luith all her soul, and you will suffer yet even more than I have. If I don’t get a letter from you by eleven o’clock Friday, I shall have letters posted to every newspaper in the city by twelve, to have their reporters call on me; and they will send them, too, and don’t you make any mistake about that. Another thing I have to spy. I have no more money to buy stamps and paper, so after this I shall be obliged to write on postal cards. You. send me money by Friday morning; also, money for my chain and locket. You just dare to break your word to me, you clirty, miserable, old, treacherous, ■mangy, deceitful dog! I will have you in court for bonds to support baby, and I will sue your mother, and drag her miserable, old, wretched bones to court, too, tho’ the newspapers will be enough to kill her, when she reads the glaring headlines. I can sue her for alienation, and I’ll tell how you forced me to put baby on a baby farm, and how she nearly died there. I will pay you back ten times over if you don’t keep your word to me. I don’t want you to send me money very long, but you shall keep your word. The firm is still sending you money, and I have a right to some. I’ll tell everybody how you pay taxes and buy carpets and keep up that old ranch and buy old jilted Arm bicycles, while your own daughter is living on charily, and how you insured your life for your old-maid hog of a sister, even after your baby was born.”

The emphasis is that of the writer.

Comment on these letters is superfluous. They speak for themselves, and show the writer to be unfit to have tho care of this child. If all the facts were as claimed by this woman, they would not excuse or palliate these coarse and indelicate effusions. The writer exhibits in these letters such traits of character as to make it manifest that her influence upon susceptible child nature could not be other than debasing. Although there are serious reflections in the evidence on the character of the husband, it must be remembered that this is not a contest between husband and wife for the custody of the child. The wife is here seeking to take it from a 'home where she voluntarily placed it, and where its moral as well as physical welfare will receive all needed attention, and where, under proper order of the court, it uiiglit have been kept. The writ should, have been denied. -REVERSED.

Granger, C. J., not sitting. ■  