Merchant v. Bussell

September 25, 1941, Francis O. Merchant filed a petition for a writ of habeas corpus to recover custody of his minor daughter, Nancy Ann Merchant, aged four years. The writ issued and the child was produced in court. After a hearing the sitting justice dismissed the writ and ordered the child restored to the custody of the respondent. The case is before us on exceptions to this ruling. The petitioner was the husband of Mary Luella Bussell, who was the daughter of the respondent. The marriage took place March 6, 1936, and the child was born March 3, 1937. The mother died a few hours after the birth. Shortly after the funeral there was a conference at the home in Saco of Dr. Clarence E. Thompson, a brother-in-law of the respondent. There were present Mrs. Bussell, her two daughters, and the petitioner. At the hearing Mrs. Bussell testified that at this family conference, in response to her inquiry as to whether she could have the child, the petitioner said: ""Yes, she is your child. You may bring her up."" The daughter, Catherine, corroborated her mother. Dr. Thompson testified that on the same day he had a talk with the petitioner who said: ""I have given the child to Mother Bussell to remain with her as long as she lives."" It is obvious that the reference is to the life of the grandmother. The petitioner admits that there was talk about the future of the child but denies that he ever agreed that the grandmother during her life could have custody of his daughter. The important fact, however, is that with the father's consent the child did remain with the grandmother who a year later moved to Rochester, N.Y., where she lived with her daughters and brought up the child. In June, 1941, the respondent's sister, Mrs. Thompson, died and since then the respondent has made her home with her brother-in-law, Dr. Thompson, in Saco. The grandmother has given the child devoted care, has watched over her during all the vicissitudes of babyhood, has given of her time and money that her grandchild might have the same kind of home life that the respondent was able to give to her own daughters, until today there is the same devotion between grandmother and grandchild as there would have been between mother and daughter. During all this time the father has seen but little of his child, has contributed in a relatively small way to her support, has given her but little personal attention, and apparently has been quite willing that the normal ties which bind together parent and child should be severed. In 1939 he remarried and the following year a son was born to his second wife. His daughter visited him and his wife in the summer of 1940 and on bringing her back to the respondent there was not the slightest intimation that he intended to end the arrangement which had been established on the death of his first wife. In fact, he at all times seemed perfectly satisfied with the child's bringing up and desirous that things should go on as they were, until the spring of 1941 when he requested that the child be returned to him.