He contends that during the years in question, there was a legal obligation resting upon the petitioner to support, maintain, and educate his minor children. This contention is controverted by the petitioner, and in support of his position he relies upon Hunt v. Thompson, 4 Ill. (3 Scam.) 179, 36 Am. Dec. 538; Plaster v. Plaster, 47 Ill. 290; McMillen v. Lee, 78 Ill. 443; and People v. Waddell, 247 Ill. App. 255. In the Hunt Case the plaintiff had furnished clothing to a minor child who had voluntarily abandoned his home.
Nor is the implication of defendant's argument, that his wife is "eluding" and "evading' the jurisdiction of the Illinois courts and has thus "absconded", supported by the record. While the father's right to the custody of his children may not be defeated by the simple expedient of his wife's absconding with the children ( People v. Shine (1933), 271 Ill. App. 479, People v. Waddell (1928), 247 Ill. App. 255), the mere fact that a divorce has occurred does not relieve a husband and father from the duty to support his minor children. In Boyle v. Boyle (1927), 247 Ill. App. 554, 556-557, cited with approval in Gill v. Gill, supra, the husband secured a divorce on the ground of desertion and the wife filed a written appearance, as in the case at bar, but the reviewing court in upholding an award of child support to the mother pointed out: "Evidently she knew her husband was not claiming the right to the possession of the child.
In the case of Stafford v. Stafford, 217 Ill. App. 548, affirmed in 299 Ill. 438, it is held that as between father and mother of minor children, the father has a superior right to its custody, all things being equal. In the case of the People v. Waddell, 247 Ill. App. 255, the Appellate Court of the Fourth District held: "A man cannot be said wilfully to neglect and refuse to support his child where his wife, without reasonable excuse, keeps it away from him. A man has a right to maintain his children in his own home, and cannot be compelled, against his will, to do so elsewhere, unless he had refused or failed to provide for them where he lives.
In view of the whole situation, however, we are not prepared to hold that under the evidence in this record he has been guilty of a criminal offense at this time. People v. Honaker, 281 Ill. 295; People v. Waddell, 247 Ill. App. 255. In the Honaker case, supra, the husband was charged with deserting his child and neglecting and refusing to provide for the child who was then and there in destitute and necessitous circumstances.