Summary
In Reynolds, 200 Miss. at 483–86, 27 So.2d at 691–92, also a habeas corpus case, the Mississippi Supreme Court again found the best interests of the children were served by an award of custody to a third party instead of the natural parents.
Summary of this case from Sizemore v. PickettOpinion
No. 36183.
October 28, 1946.
1. PARENT AND CHILD.
So long as the dominant right of the parent to the custody and care of a child is not forfeited by conduct or conditions which adversely affect the welfare of the child, mere considerations of comparative well-being are no concern of the State whose continuing guardianship of its infant wards may supervise but never supersede its natural guardian.
2. PARENT AND CHILD.
The welfare of a child is presumed to be best promoted by parental custody, and against this presumption the pressure of mere assertion that the material advantages of a better culture or more lavish provision are elsewhere available may not prevail.
3. PARENT AND CHILD.
The State in compelling parental solicitude must be never lax in manifesting its own, yet it withholds its own powers until the parent abandons the child or by unfitness abandons his rights.
4. HABEAS CORPUS.
In habeas corpus proceeding for the custody of children the trial court had the duty to determine the matter in accordance with the relative strength of the rights of petitioner, the parent, and the children, and the Supreme Court would not substitute its judgment for that of the trial court depriving the parents of custody under a decree providing for retention of jurisdiction (Code 1942, sec. 7191 et seq.).
APPEAL from the chancery court of Hinds county, HON. V.J. STRICKER, Chancellor.
Barnett, Barnett, Jones Stone and Francis S. Bowling, all of Jackson, for appellants.
It is presumed to be for the real interest of the child that it should be in the custody of its father, as against collateral relatives, and he, therefore, who seeks to withhold the custody against the natural and legal presumption has the burden of showing clearly that the father is an unsuitable person to have the custody of his child, or that, however moral he may be, he had abandoned his child, contributed nothing to its support, took no interest in it, and permitted it to remain continuously in the custody of others, substituting such others in his own place so that they stand in loco parentis to the child, and continued this condition of affairs for so long a time that the affections of the child and of the foster parents have become mutually engaged to the extent that a severance of this relationship would surely result in destroying the best interest of the child.
Hibbette v. Baines, 78 Miss. 695, 29 So. 80; Nickle v. Burnett, 122 Miss. 56, 84 So. 138.
The mere fact that the great-aunt may have had for a long time the custody and control of a child and supported it, and may have formed an affection for it, does not show an abandonment by the father or parent, and does not warrant the court in denying to such parent, provided he is suitable, the custody of his child.
Sinquefield v. Valentine, 159 Miss. 144, 132 So. 81.
It is presumed that the best interest of the child will be preserved by its remaining with its parents or parent until the well-recognized exceptions have been established.
Stegall v. Stegall, 151 Miss. 875, 119 So. 802.
A reputation for unchastity may be deservedly because of a single immoral act committed in a moment of weakness, and yet, at the time when the issue is raised, the appellant may be perfectly capable, so far as the law is concerned, of rearing and educating his or her own children.
Stegall v. Stegall, supra.
See also Bullard v. Welch, 171 Miss. 833, 158 So. 791; Hayes v. Morgan et al. (Miss.), 164 So. 880; Mahaffey v. Mahaffey, 176 Miss. 733, 170 So. 289; Forbes v. Warren, 184 Miss. 526, 186 So. 325; 39 Am. Jur. 616, Sec. 26.
A court cannot properly put upon its record a judgment which is not a proper sequence to the pleadings. The judgment must conform to and be supported by the pleadings in the case.
Code of 1942, Secs. 7187, 7188, 7191; 33 C.J. 1139, Secs. 87, 92, 93; 31 Am. Jur. 67, Sec. 402.
After awarding the custody of a child to the party entitled thereto, the judge in a habeas corpus trial is without power to direct the manner in which such party shall exercise his lawful authority over such child, or to direct that he shall thereafter surrender, though temporarily, the custody thereof to another person. The judge does not merely, because he presided in a habeas corpus trial in which the right to the custody of a person was determined, thereby acquire perpetual jurisdiction over the custody and welfare of such person. When the order entered by him either freeing the person from restraint or awarding his custody to the party entitled thereto has been executed, the judge's jurisdiction in the matter is held at an end unless and until it is again invoked by the issuance of another writ of habeas corpus.
Gray v. Gray, 121 Miss. 541, 83 So. 726; Yarbrough v. Dunnam, 130 Miss. 669, 94 So. 892; 29 C.J. 111, Sec. 106. Hubert Lipscomb, of Jackson, for appellee.
The welfare of the child or children is the matter of chief importance, and the consideration of their welfare will prevail over any mere preponderance of legal right in one or the other party. The age, sex and physical condition of the child are often important elements in determining what custody would be for its best welfare. The wishes of children of sufficient capacity to choose for themselves should be given especial consideration when their parents have, for a long time, voluntarily allowed them to live in the family of another, and the court will make no coercive order in such cases to enforce the mere legal right of the parent to their custody against the manifest inclination and reasonable choice of the children to remain where they are.
20 R.C.L. 601-603, Sec. 15.
See also, Hayes v. Morgan (Miss.), 164 So. 880; Mahaffey v. Mahaffey, 176 Miss. 733, 170 So. 289; Forbes et al. v. Warren, 184 Miss. 526, 186 So. 325.
Where a parent, without just cause, deserts his infant child for such a length of time and under such circumstances as to show an intent to evade the duty of rearing the child or a callous indifference to its wants, the parent is guilty of such "abandonment" of the child as to bar his right to reclaim the child's custody from any person who may have ministered to the child during the period of desertion, since conduct conclusively rebuts the legal presumption that the child's welfare would, other things being equal, be best served by the custody of the parent.
Foster v. Alston, 6 How. (7 Miss.) 406; Maples v. Maples 49 Miss. 393; McShan v. McShan, 56 Miss. 413; McAdams v. McFerron et ux., 180 Miss. 644, 178 So. 333.
The decree is neither void nor voidable because the court reserved jurisdiction of some of the parties.
Code of 1942, Secs. 1275, 1962, 7185, 7186, 7191; Laws of 1941, Chap. 300.
Argued orally by Francis S. Bowling, for appellants, and by Hubert Lipscomb, for appellees.
Petition for writ of habeas corpus was filed by appellee for the custody of the twin children of appellants. Upon the hearing, the prayer of the petition was granted.
A recital of the details of the testimony upon which the parents were found unsuitable to the custody of the children would accomplish no more than a chronicle of disturbing events and circumstances. It is not helpful to cite cases whose diverse factual patterns serve only to support the right of the parent or disclose its forfeiture.
In the kaleidoscope of human relationships, the rude and realistic hand of fate jostles the facts and their actors into ever changing patterns, and through its lens the courts view constant rearrangements into designs which never repeat. There is only one constant. This is the dominant and natural right of the parent to the custody and care of the child. So long as this right is not forfeited by conduct or conditions which adversely affect the welfare of the child, mere considerations of comparative well-being are no concern of the State whose continuing guardianship of its infant wards may supervise but never supersede its natural guardian.
It is not exact to say that the controlling principle is the mere welfare of the child for the law does and must recognize that its welfare is presumed to be best promoted by parental custody. Against this presumption, the pressure of mere assertion that the material advantages of a better culture or a more lavish provision are elsewhere available may not prevail. To say that the parent has the right to rear his child in decent poverty is but to acknowledge that the right to share the lot of those of whom the child is part is more fundamental than the measure of the lot itself. As this right becomes impaired by conduct or conditions which strip off the fabric of which this presumption is fashioned, the State has the duty to assume the responsibilities which the parent has discarded. It is then that the welfare of the child emerges as an important factor. The State in compelling parental solicitude must be never lax in manifesting its own. Yet it withholds its own powers until the parent abandons the child or by unfitness abandons his rights.
The sordid recitals of this record show that these twin children have been throughout their brief years the innocent and injured bystanders amid the riotous contentions of unhappy and disordered households. It was not unreasonable for the chancellor to find that exposure to these influences was apt to infect these wards with disorders which lie too deep for superficial treatment, and which, though healed by the slow processes of a reawakened and repentant ministration, may leave their spirits pockemarked with persisting scars. The only promises thus far forthcoming from appellants are those whose tenor lends to them the aspect of a threat to the peace and welfare of these hapless and forlorn pawns in a cruel game whose rules have been flouted with a ruthless disregard.
We must deal here with a condition and not a theory. We visit no condemnation upon the adult actors in this distasteful drama, nor do we measure and allocate to each his several liability. We purposely make impersonal our comments lest emphasis upon the resultant situation be lost, and lest our course be inconsistent with appellants' quickened hope for and purpose toward a better justification.
The task of the learned chancellor was difficult. Between conflicting claims of such gravity lies no middle ground. Each several claim, unanswered by impeaching fact or circumstance could stand alone to support its advocate. It was the duty and function of the trial court to divine the answer to the problem of mixed law and fact, in accordance with the relative strength of the rights of the petitioner, the parent, and the children. After full revelation of the facts supporting each right, he found that the parents had in law abandoned the children and were unsuitable. We do not substitute a contrary judgment.
We notice the appellants' contention that by an amended decree the chancellor sought to retain jurisdiction over the children and to exercise a control substantially in accord with Section 7191 et seq., of the Code of 1942, including the right to change the custody under altered circumstances. Such assignment of error would require an examination of the applicability of the cited sections, enacted primarily as part of the Juvenile Court Act, to proceedings by habeas corpus under which the award is ordinarily unconditional. We forbear to pursue this contention since appellants could not have been aggrieved thereby.
We need add only that the findings of the decree are to be tested by the existing facts. The learned chancellor has destroyed no bridges over which appellants may retrace their course with an enlightened and chastened purpose and by reclaiming themselves seek anew to reclaim their children.
Affirmed.
Sydney Smith, C.J., took no part in this decision.