*361.* _Custody, Maternal Relatives, Father._—A parent is entitled to the
care and custody of his child if he is competent to transact his own
business and not otherwise unsuitable. And the mere fact that the maternal
relatives who have had the care of the child from its birth have become
attached to it and desire to continue to care for it and are able to
secure it better advantages than its parent, does not render the parent
unsuitable to have its care and custody within the meaning of the statute.
Also, the want of a sympathetic nature or cold reserve in a parent or the
fact that he is away on business a great deal of the time, is not
sufficient to render him unsuitable. But the right of the father may be
lost or forfeited by his ill-conduct, gross ill-treatment, cruelty, or
abandonment, or when his conduct and life are such as are injurious to the
morals and interest of his child. When the father dies or forfeits his
right for reasons already given, the mother, if alive, succeeds to all
those rights, subject, however, to the same conditions as the father. And
in the case of a child of tender years, the good of the child has to be
regarded as the predominant consideration.(640)
*362.* _Mother, Illegitimate, Father._—The mother has a right to the care
and custody of her illegitimate child to the same extent that a parent has
to his legitimate child.(641) The putative father on the mother’s death
succeeds to the mother’s rights as against the maternal relatives and may
secure the custody of the child by _habeas corpus_. This rule is different
from the one that prevailed in the Roman law.(642) However, when the
father has given bond for the care, support, and education of an
illegitimate child, his right to the custody of the child may be
superior.(643)
*363.* _Legitimatized._—And when under a statute a child is legitimatized
by acknowledgment or subsequent marriage, the father has the better right
to its custody.(644) Usually there are many provisions in the statutes of
the various States which substantially provide for the rights, relative
and otherwise, of the parents and child in such cases.
*364.* _Punishment, Instrument, Murder._—A parent or a person _in foro
domestico_ or _in loco parentis_ may give reasonable corrective punishment
with a fit instrument to a child. But if a parent or master whips a child
so that it dies, he is guilty of manslaughter. And if he uses lethal
instruments of punishment, he is guilty of murder.(645) Where a mother in
anger threw a poker at one child and hit and killed another child, she was
guilty of manslaughter.(646) The punishment always becomes unlawful when
it is excessive, and drunkenness is no excuse.(647)
*365.* _Guardian, Religion, Courts._—In England where a child was taken
from the testamentary guardian, who after the death of the testator
changed her religion from a Protestant to a Catholic, it was held thereby
to be incompetent to continue as guardian.(648) And in New York it was
held that where the father and mother were Catholics, the guardian must
endeavor to bring the children up in that faith, as a guardian will not be
permitted to proselyte wards.(649) But where a father who was a Catholic
allowed his child to be brought up by a maternal aunt who was a
Protestant, until the child was fourteen years of age, the father was not
then entitled to the child’s custody for the purpose of having it
instructed in his own faith.(650) Courts will not interfere with the
religion of a child, but will allow it to be brought up in the religion of
its parents; however, the best interests of the child will be considered
by the court without conceding everything else to its religion.(651)
*366.* _Convent, Consent._—A daughter under age who entered a convent to
become a nun without the consent of her mother, may, on a writ of _habeas
corpus_ on the petition of her mother, be required to leave the convent
and return to her home.(652)
*367.* _Adoption, Rights, Duties._—Persons of suitable age and
circumstances to enter the marital relations, may adopt a child. When a
married couple do not unite in adopting a child, the consent of the
non-adopting spouse must be obtained. Also, if the child’s parents are
living, their consent is necessary unless they have lost their paternal
rights by abandonment or divorce. The decree of adoption may be set aside
for good cause. The adopted parent has all the rights over and duties
toward the person of the adopted child that a natural parent has,
including necessaries and religious training. Usually the child inherits
from the adopted parents, but the adopted parents do not inherit from the
child. The statutes on adoption are not the same in the several States,
but they cover the subject and must be strictly followed.(653)
*368.* _Infancy, Manumission, Marriage._—At common law a person is an
infant until he is twenty-one years of age. Statutes have modified that
rule so that girls in some States, and both girls and boys in others, may
contract marriage at an earlier age without the parental consent.
Generally, an infant can not contract marriage without the consent of the
living parent or guardian unless the child has been manumitted. Where the
boy was under the age of consent, but he falsely told the priest that he
was of full age, his father had the marriage annulled.(654)