Another important point of law, affecting the mutual relation of parent and child, is the right of the parent to the custody of the child. At common law it is the father who has the right to the custody of the child until majority at least, as against third parties, • and no court will deprive him of such custody except on strong grounds. Whenever the child is entitled to property, the court of chancery so far controls his parental right, that if the father is shown to act with cruelty, or to be guilty of immorality, a guardian will be appointed. A court of common laW also has often to decide in cases of children brought before it by habeas corpus, when parties have had the custody against the father's will. In such cases, if the child is under fourteen, called the age of nurture. and the father is not shown to be cruel or immoral, the court will order the child to be delivered up to him; but if the child is above fourteen, or, as some say, above sixteen. the court will allow the child to choose where to go. So the father is entitled by his will to appoint a guardian to his children while they arc under age. The mother had at common law no right as against the father to the custody of the children. however young; but under a statute of 3G and 37 Viet. c. 12, she is entitled to the custody of the child while under sixteen years of age, or rather she is entitled to apply to the court of chancery for leave to keep the children while under that age, provided she is unobjec tionable in point of character; and access may be allowed to the father or guardian. If the parents separate by agreement, no stipulation will he enforced which is prejudicial to the child. In ease of divorce or judicial separation, the court of divorce has power to direct who is to have the custody of the children.
2. Illegitimate Chilciren.—It has been already stated that, at common law, the parent of a legitimate child is not bound to maintain it, and this is equally true of an illegiti mate child—i.c., a child not born in wedlock. In strictness of law an illegitimate child has no father, which means practically that in case of the death of the father without making a will, the law will not treat such child as entitled to the ordinary legal rights of a legitimate child—i. e., to a share of the father's property. The child is not legally related to the father in this sense. With regard to the mother, she also is not bound to maintain her child according to the common law; but the poor-law acts have made an important qualification of her rights and duties. As between the father and mother of the child, the law is this: The father is not bound even by the poor-laws to maintain the child, and the parish officers cannot now institute any proceeding whatever against him for this purpose; but the mother can, to a certain extent, enforce against him a contribution toward the child's maintenance and education, or the guardians may do so. It is entirely discretionary on the mother to take any proceeding against the father. but if she chooses she can do so; and the first step is to go before a justice of the peace, and obtain a summons of.affiliation. The father is thus cited before the magistrate, and if the mother swears that he is the father of the child, and is cmroborated in some material part of this statement by a third party, the magistrate may make an order against the father to pay the expenses of lying-in, and a weekly sum not exceeding five shillings till the child attains the age of sixteen. The mother may make this application either a few months before the birth, or within twelve months after the birth; and even after that time, provided she can prove that the putative father paid her some money on account of the child within such twelve months. The putative father, its these cases, is a coin retent and compellable witness. The utmost, therefore, that the father can be made to contribute toward the child's maintenance is only a portion of the whole, the chief burden being thrown on the mother, who is assumed to be the more blamable party. Though she is not bound by the common law to maintain her child, yet the poor-laws make her liable to maintain the child till it attains sixteen; and not only is she bound, but any man who marries her is also by statute bound to support all her illegitimate (and also legitimate) children till they attain sixteen. The result is, that illegitimate children under sixteen are better provided for by the present state of the law than legitimate chil dren, inasmuch as the mother is positively bound to support her illegitimate child, and only to a less extent her legitimate child, As regards the custody of illegitimate chil dren, the mother is the party exclusively entitled, for the father is not deemed, in point of law, to be related to such child. Yet if the father has, in point of fact, obtained the custody of such child, and the child is taken away by fraud, the courts will restore the child to his custody, so as to put him in the same position as before. Though illegiti mate children will not succeed to the father's property in the event of his dying with-..1 out a will, there is nothing to prevent him making his will in their favor, provided he expressly name and identify them, and not leave it to theni by the description of " his children," which in point of law they are not.
Scotland.—The law of parent and child in Scotland differs materially from the law of England and Ireland. In Scotland a child may be born a and yet if the
parents afterward marry this will legitimize the child, and give the child the right to suc ceed to the father's property. A difficulty sometimes arises where, before the father and mother of a bastard marry, the father has had a legitimate family by anotherwoman, in which case it is held that the bastard, though oldest in point of age, does not take pre cedence of the legitimate children. The law of Scotland also differs from that of Eng land as regards the obligation of parent and child to maintain each other. There is a legal obligation on both parties to maintain each other if able to do so, and either may sue the other for aliment at common law; but this obligation extends only to what may be called subsistence money, and does not vary according to the tank of the party. Thus an earl is bound to pay no more for the aliment of his son than any other father. As regards all maintenance beyond mere subsistence, the law does not materially differ from that of England, and a contract must be proved against the father before he can be held liable to pay. The legal liability as between parent and child is qualified in this way by the common law, that if a person has both a father and a child living and able to support him, then the child is priinarily liable, and next the grandchild. after whom comes the father, and next the grandfather. Not only are parent and child liable to support each other while the party supporting is alive, but if he die, his executors are also liable; and this liability is not limited by the age of majority, but continues during the life of the party supported. Such being the common law of Scotland, it was scarcely necessary, as in England, for the poor-law to supply any defect: but the Scoteli poor law supplements the common law, by imposing a penalty on a father or mother (though not vice vend) who neglects to support a child. Another advantage which a "WWI, child has over an English child is, that the father cannot disinherit it—at least sc as concerns his movable property; and even in case of heritable property, the rights of the child were so protected, that unless the father made away with his heritable property sixty days before his death, or while in sound health, it was too late to prejudice his heir-at-law; this rule was, however, abolished in 1870 by 34 and 35 Viet. e. 81. This was called the law of death-bed (q.v.); but as regards the father's movable property, Le cannot by any will he can make at any time of his life deprive the children of one third, or, if their mother is dead, of one-half of such property. This is called the chil dren's right to legitim (q.v.), a right which they can vindicate, whatever may be their age when the father dies. With regard to the custody of children in Scotland, the rule is, that the father is entitled to the custody as between him and the mother; but the court of session has power to regulate the custody in case the children are entitled to property, and the father is of an immoral or cruel character; and the court will also interfere to allow to the mother access to the children at certain times and seasons. Another important difference between a Scotch and English child is this, that whereas in England the father or guardian, or the court of chancery, has power to control the custody of the person of the child to a certain extent, until the child attains the age of 21, in Scotland such power entirely ceases when the child attains the age of 14 or 12, according as such child is male or female. At the age of 14, a boy, and at 12, a girl, in Scotland, is entire master or mistress of his or her movements, and can live where he or she pleases, regardless of any parent or court. They can marry at that age at their own uncontrolled discretion, and act in all respects with the same freedom as adults. As regards the disposition of their property there are some restrictions, but as regards the disposal of their persons there are none, after the ages of 14 and 12 respect ively.
L. Ilkgitimate CIaldren.—The law of Scotland as to illegitimate children also differs in some respects from that of England. Both the father and mother of a bastard are bound by law to support such child. and the obligation transmits to the personal repre sentatives of the father or mother. Moreover, by the poor-law statute both are liable to a penalty for neglecting to support the child. The mother of illegitimate children is entitled to their custody till the age of ten, if daughters, emd if sons, till the age of seven; but the limit is not clearly defined. if the father support the child after the above age, he is entitled to the custody. The mother does not apply to a magistrate for a summons of affiliation in order to fix the paternity; but she may bring an action of filiation and aliment, in which the question of paternity is settled. The father may be judicially examined, and is a competent witness; and it is usual for the court to decree an aliment, varying from £4 per annum against laborers, up to £10 rgaiust persons in Letter cir cumstances. In Scotland, as in England, the father of a bastard child is not deemed related, in point of law, to such child; and if he desires to provide for such child, it must be done by deed or will, in which the child is identified, and not merely described under the general designation of " child," which he is not.