Opinion
4 Div. 314.
January 26, 1937. Rehearing Denied March 16, 1937. Reversed on Mandate October 26, 1937.
Appeal from Probate Court, Barbour County; J. F. Laseter, Judge.
Habeas corpus proceedings for custody of a child by Charles F. Kugle and Sophia Kugle against Erma Harpe. From a decree denying them custody of the child, petitioners appeal.
Affirmed.
Certiorari granted by Supreme Court in Kugle v. Harpe, 234 Ala. 494, 176 So. 617.
Chauncey Sparks, of Eufaula, for appellants.
The determination of the custody of a minor child by one state is conclusive upon the state to which the child may be captured and brought, or returned voluntarily. Burns v. Shapley, 16 Ala. App. 297, 77 So. 447; 29 C.J. 113. An order or decree of adoption can be assailed on habeas corpus only on jurisdictional grounds. Code 1923, § 431; Tilley v. Harrison, 91 Ala. 295, 8 So. 802; Cofer v. Scroggins, 98 Ala. 342, 13 So. 115, 39 Am.St.Rep. 54. The court has no authority to go beyond the parties involved in a habeas corpus proceeding to determine the custody of a child, in fixing that custody, Code 1923, c. 151, § 4305 et seq.; Gen.Acts 1931, p. 504. The facts in this case, under the laws of Alabama, require the court to award the child to petitioners, the adoptive parents. Bradley v. Bennett, 168 Ala. 240, 53 So. 262; Kirkbride v. Harvey, 139 Ala. 231, 35 So. 848.
Clayton, Clayton Clayton, of Eufaula, for appellee.
The bringing of habeas corpus is a submitting of the jurisdiction of the child to the probate court, and the question for the court to decide is the best welfare of the child. Adoption of the child, even if valid, is not determinative of the issue; appellants are in no better position than the natural parents, and natural parents cannot secure custody of a child by habeas corpus unless it is for the best interests of the child. Bradley v. Bennett, 168 Ala. 240, 53 So. 262; Kirkbride v. Harvey, 139 Ala. 231, 35 So. 848; Murphree v. Hanson, 197 Ala. 246, 72 So. 437. To the end that the best interests of the child be subserved, the court is not limited to the parties to the petition in awarding custody of the child. Tillman v. Walters, 214 Ala. 71, 108 So. 62. A declaration of adoption is in nowise binding upon a court acquiring jurisdiction of the child. Murphree v. Hanson, supra.
The child involved in this litigation was within the state of Alabama, and without the custody of petitioners, appellants.
They brought, before the probate court of Barbour county, this "proceeding by habeas corpus," for the manifest purpose of obtaining custody of said child. Their petition was denied.
The court has read, studied, and considered, the testimony adduced on the hearing, sitting en banc. We are not persuaded there was error in the action of the judge of probate in denying said petition.
Appellants, by their distinguished counsel, complain bitterly, here, that there was an absence of jurisdiction in the court from which the appeal comes, to make, upon the conclusion of the hearing before it, the order which he did make — awarding the custody of the child, not to the mother (appellee) who had it in possession, but to the State Child Welfare Department. But we do not think the complaint well founded. See Act approved June 29, 1931 (Gen.Acts Ala. 1931, pp. 353, 355); also Murphree v. Hanson et al., 197 Ala. 246, 72 So. 437.
The matter being, properly, certainly at the instigation of appellants, before the probate court, the duty devolved upon that court to act "according to the best interests" of the child. And this regardless of the efficacy, vel non, of the claimed adoption of the child by appellants under the laws of Georgia. Whatever the status of this "adoption," it could place appellants in no stronger position than it would have been had they been the child's natural parents. And, in this latter event, it would still have been the duty of the court to mold his order to fit the "Welfare of the Child." Bradley et al. v. Bennett, 168 Ala. 240, 53 So. 262; Kirkbride v. Harvey, 139 Ala. 231, 35 So. 848. The judgment is affirmed.
Affirmed.
Opinion after Remandment.
On October 5, 1937, we made an order — which is now, and hereby, set aside and held for naught — reversing the judgment appealed from, and remanding the cause, upon the authority of the opinion and decision by the Supreme Court on appellants', herein, petition for writ of certiorari to that court.
We have given further consideration to the above-mentioned opinion and decision of the Supreme Court; and it is now our opinion that we should, in obedience to that court's mandate, make the order, here, which is therein indicated.
Accordingly, it is here ordered and adjudged that the judgment appealed from be reversed; and the custody of the child in question is hereby ordered to be restored to petitioners. Code, § 7318.