Guardianship of Austerhaudt Minors

*19. The father and mother intermarried in this city about twelve years ago, and lived together until about two and a half years ago. The children, two beautiful and interesting girls, are aged respectively eleven and nine years. In January, 1870, the mother obtained a divorce from her husband on the ground of adultery. The mother retained the care and custody of the girls; she was very poor, but managed by hard work to support them and bring them up properly. A few months ago she married one Kerchival, and with the children went to live with him in Oakland. The father filed his petition in this Court, setting forth that the mother had instructed the children to assume her maiden name instead of retaining his, and had taught them to fear him and avoid him, and that she was alienating their affections from him, and was not a proper person to have the care of them; and prayed that he be appointed guardian.

After the divorce, the father and mother agreed that she should not apply for guardianship, but should retain the children and have the care of them, and that he should pay $50 per month towards their support. He kept the promise for two months, but then marrying again, did not visit them or aid in their support. The children, on being questioned by the Court in presence of counsel, expressed a decided preference for the mother.

The mother is shown to be a good and proper person to have the care of the children; they earnestly desire to remain with her. On the other hand, the character of the father is at least questionable, in view of the proceedings in the divorce case; and the character of his second wife is seriously attacked. The petition of the father is denied, and the children may go with the mother.