Sec 400

The right of a father, also, to the custody of his children, is inalienable, and he is not bound by an agreement surrendering such custody, unless, from their extreme infancy, or his incompetency, the agreement is one the courts feel called upon to enforce.7 "He cannot, therefore, by any contract, relieve himself from the responsibility of discharging this duty; and hence it must be considered as settled (at all events in England), that contracts by a father to give up to his wife the custody and education of their children, are contrary to public policy, and will not be enforced in equity against the husband; and this although the husband may have been guilty of adultery and of cruelty to his wife."1 But the father may, by waiver, strengthened by lapse of time, preclude himself from asserting his right against the child's interests.2 And a father, after consenting to a son taking employment, cannot, after the wages have been earned, retract such consent.3 But, as a general rule, "the husband can in no circumstances bind himself not to set up his paternal rights,"4 nor will such an agreement be operative unless in cases in which the father would on other grounds be deprived of his children's custody.5

Father cannot divest himself of custody of children.

1 Strathmore v. Bowes, 1 Ves. Jr. 28.

2 Taylor v. Pugh, 1 Hare, 613. In 2 Kent's Com. 175, it is said: " If the settlement he upon the children of a former husband, the settlement would be valid without notice," citing King v. Colton, 2 P. Wms. 674; Jones v. Cole, 2 Bailey, 330. And see supra, sec 266.

3 See Jiggitts v. Jiggitts, 40 Miss. 718; Davis v. Davis 5 Mo. 183. The right is secured in some states by statute. Littleton v. Littleton, 1 Dev. & B. 327; M'Intosh v. Ladd, 1 Humph. 459; Jiggitts v. Jiggitts, 40 Miss. 718.

4 Supra, \ 239.

5 Gibson v. Hutchinson, 120 Mass. 27; Baker v. Chase, 6 Hill (N. Y.) 482; Crawson v. Crawson, 4 Mich. 230; Tate v. Tate, 1 Dev. & B. Eq. 27; Davis v. Davis, 5 Mo. 183. See on this topic an article by Judge Thompson in 14 Cent. L. J. 399.

6 Littleton v. Littleton, 1 Dev. & B. 327; Tucker v. Tucker, 29 Mo. 350; 32 Mo. 464.

7 Bispham's Eq. sec 547; 2 Lead. Cas. Eq. 671; Andrews in re, L. R. 8 Q. B. 153; Besant in re, L. R. 11 Ch. D. 508; Vansittart v. Vansittart, 2 De G. & J. 249; Farnsworth v. Richardson, 35 Me. 267; Richardson v. Richardson, 35 Me. 560; Johnson v. Terry, 34 Conn. 259; Torrington v. Norwich, 21 Conn. 543; Mercein v. People, 25 Wend. 64; People v. Mercein, 3 Hill, 399; State v. Baird, 6 C. E. Green, 384; Com. v. Smith, 1 Brewst. 547; Gates v. Renfroe, 7 La. An. 569; Byrne v. Love, 14 Tex. 81.