Fisher Ex Rel. Barcelon v. Baker

Pursuant to the rules of practice (§ 23-24), once a petition for a writ of habeas corpus is filed in the Superior Court, ''[t]he judicial authority shall promptly review [the] petition . . . to determine whether the writ should issue. The judicial authority shall issue the writ unless it appears that . . . the court lacks jurisdiction . . . the petition is wholly frivo- lous on its face . . . or . . . the relief sought is not available.'' Pursuant further to the rules of practice (§ 23-29), ''[t]he judicial authority may, at any time, upon its own motion or upon motion of the respondent, dismiss the petition . . . if it determines [inter alia] that . . . the court lacks jurisdiction . . . [or] the petition . . . fails to state a claim upon which habeas corpus relief can be granted . . . .'' The petitioner, who had been convicted, on a guilty plea, of the crime of robbery in the third degree, filed a petition for a writ of habeas corpus, seeking to withdraw his guilty plea and to have his conviction vacated or dismissed. The petitioner alleged that he had received a sentence of unconditional discharge in connection with the robbery conviction but that he remained incarcerated on unspecified other charges and that the robbery conviction was adversely affecting his eligibility for parole on the other charges. The habeas court granted the petitioner's applica- tion for a waiver of fees but took no action as to his request for the appointment of counsel. Shortly thereafter, however, the court, sua sponte and without providing the petitioner with notice or an opportunity to be heard, dismissed the petition pursuant to Practice Book § 23-29 on the ground that the habeas court lacked jurisdiction because the petitioner was not in custody for the conviction that he was challenging at the time he filed the petition. On the granting of certification, the petitioner appealed to the Appellate Court, which affirmed the habeas court's judgment, and the petitioner, on the granting

<p>Appeal from District Court, Second District; Hon. N. J. Harris, Judge.</p> <p>Application by Catherine Lambing Hummel for a wri,t of habeas corpus against Samuel J. Parrish and Caddie K. Parrish to obtain the custody of her minor child. Prom an order awarding the custody of the child to the defendants, plaintiff appeals.</p> <p>APPELLANT'S POINTS.</p> <p>The presumption is that the parent is a fit and suitable person to be entrusted with the care of his children and that the interests and welfare of said children are best subserved when under such care and control. (Wilson v. Mitchell, 111 Pac. 23, 30 L. It. A. N. S. 511; Miller v. Miller, 123 la. 165, 98 N. W. 631; Swarens v. Swarens, 97 Pac. 968; State v. Martin, [Minn.] 103 N. W. 888; Terry v. Johnson, [Neb.] 103 N. W. 318; Hibbeite v. Bains, 78 Miss. 695, 51 L. it. A. 839.)</p> <p>Before the legal right of the parent to the custody of the child will be ignored or invaded by the court, it must be established by plain and certain proofs either that the parent is unfit to be entrusted with the care of minor children or that he has abandoned the child and surrendered its care and custody to the respondents. And he who seeks to withhold the custody of a minor child from its natural parents has the burden of establishing either unfitness or abandonment. ( Wilson v. Mitchell, supra; Eibbette v. Bains, supra; Wier v. Marley, 99 Mo. 484, 6 L. R. A. 672; Norvall v. Zing-master, 57 Neb. 159, 77 N. W. 373.)</p> <p>The natural guardian of a bastard child is the mother, and unless it appears by clear and satisfactory proof that she is manifestly unsuited to give it proper training, or that she has surrendered the child to respondents substituting them in her own place so that they stand m loco parentis to the child, and that she has continued this condition of affairs so long a time that a severance of the relationship between the child and respondents would surely be detrimental to the child then clearly she is entitled t