Opinion
No. 37995.
Filed February 10, 1972.
1. Parent and Child: Infants. The custody of a minor child is to be determined by the best interests of the child, with due regard for the superior rights of fit, proper, and suitable parents. 2. ___: ___. Courts may not properly deprive a parent of custody of a minor child unless it is affirmatively shown that such parent is unfit to perform the duties imposed by that relationship or has forfeited that right.
Appeal from the district court for Holt County: WILLIAM C. SMITH, JR., Judge. Reversed and remanded with directions.
Corrigan, Dowd Naviaux, for appellant.
Robert T. Finn, for appellees.
Heard before WHITE, C. J., SPENCER, BOSLAUGH, McCOWN, NEWTON, and CLINTON, JJ.
This is a habeas corpus action in which the petitioner, Mary Marcus, sought to recover possession of her infant son, Lawrence William Marcus, from the respondents, Mr. and Mrs. James D. Huffman. The district court for Holt County determined that Mr. and Mrs. Huffman should have custody of the child, denied the writ, and dismissed the case. The mother has appealed.
Petitioner Mary Marcus was; married to one Tommy Marcus in California on October 13, 1967. Tommy Marcus is the son of Mrs. James D. Huffman, one of the respondents. Lawrence William Marcus, the child who is the subject of this controversy, was born on May 11, 1969. Andrew, an older illegitimate son of Mary Marcus, was adopted by Tommy Marcus after the 1967 marriage. On January 24, 1969, and prior to the birth of Lawrence William Marcus, Mary Marcus began divorce proceedings against Tommy Marcus in the Superior Court for San Diego County, California. Efforts at reconciliation under court supervision and otherwise followed and continued up to and after the birth of Lawrence. Some time prior to June 15, 1969, in connection with one of the efforts at reconciliation, Tommy Marcus made arrangements with his mother, Mrs. Huffman, to take the two children to Nebraska for a time while the Marcuses attempted reconciliation once more. They hoped thereafter to come to Nebraska and establish a home for themselves and the children. On June 15, 1969, James D. Huffman flew to Los Angeles. Mary Marcus and Tommy Marcus delivered the two children to him in the Los Angeles airport together with their clothing, and Mary Marcus advised him of the feeding habits of the children. James D. Huffman then brought both Marcus children back to O'Neill, Nebraska, together with a third child unrelated to any of them. Andrew Marcus at that time was a little over 3 years old and Lawrence was only a month old. The reconciliation efforts failed in approximately 2 weeks. Mary Marcus then borrowed some money from her mother and drove to O'Neill, Nebraska, with her 14-year-old sister to get the children. They arrived on July 3, 1969. She went to the trailer house of the Huffmans in O'Neill, Nebraska, where she found Andrew playing in the yard and picked him up. She went into the house and told Mrs. Huffman that she had come for her children. Mrs. Huffman told her she could not have them, but she took Andrew anyway and started to drive back to her motel. She was arrested by the sheriff who advised her that she could be charged with kidnapping, but she was permitted to call her attorney in California. After some undisclosed discussions, the sheriff advised her that Mrs. Huffman had agreed that she could take Andrew but that she would be charged with kidnapping if she attempted to obtain Lawrence. Mary Marcus attempted to employ counsel in O'Neill, but was unable to do so. She then returned to California with Andrew.
On July 30, 1969, an interlocutory decree of divorce was entered by the Superior Court for San Diego County, California. That decree awarded Mary Marcus the care, custody, and control of the two children, restrained Tommy Marcus from having any contact with the minor children, and specifically provided that he should have no rights of visitation without specific order of the court. Final decree was entered July 22, 1970.
Mary Marcus testified that she telephoned on several occasions to inquire about the health of her son and to request his return. She had to leave messages at the trailer court for Mrs. Huffman to return the calls because she could not obtain the telephone number from the operator. Mr. Huffman testified that the Huffman telephone was changed to an unlisted number in June or July of 1969, because they had received many calls where there was only breathing on the other end of the line when they answered. Mary Marcus' telephone calls to the Huffmans were never returned or answered. She also wrote letters to the Huffmans on several occasions and telegraphed on several occasions. There was no response to her letters or telegrams. Mary Marcus sent several gifts to Lawrence which were received by the Huffmans but there was no acknowledgment of them to her.
This action was begun on September 1, 1970, and order entered directing the issuance of the writ for production on September 4, 1970. Mary Marcus Townsend again came to Nebraska for the hearing on September 4, 1970, but the Huffmans had previously departed with Lawrence for a vacation in Arkansas. She returned again in October for this hearing.
At an undisclosed age somewhere between 11 and 14, Mary Marcus attempted suicide by slashing her wrists. At approximately age 16, she was kept in a juvenile home for 2 or 3 days for possession of a marijuana cigarette. At age 16, she became the mother of Andrew, an illegitimate child. She lived with Tommy Marcus before their marriage on October 13, 1967, when she was 17 years old. After the birth of her first child, she completed her high school education at an adult public high school in San Diego. This history of Mary Marcus' background prior to her marriage to Tommy Marcus comes solely from the testimony of Mary Marcus.
The only testimony other than her own relating to Mary Marcus' fitness to have the custody of her child came from Mr. Huffman. Mr. Huffman testified that on one occasion, a week or two after the birth of Lawrence when the Huffmans were visiting in the home of the Marcuses in May 1969, Mrs. Huffman got up and fed the baby and Mary Marcus stayed in bed until afternoon. On another occasion, Mary Marcus left the two children for approximately 20 to 30 minutes while she attempted to get Tommy Marcus to assist in caring for them. Mary Marcus married her present husband Richard Townsend, in Mexico on February 29, 1970, before the entry of her final decree of divorce, and remarried him in California on August 11, 1970.
The evidence is clear that Andrew, the older son of Mary Marcus, was clean, well-behaved, well-dressed, and well-fed. Mr. Huffman conceded that was true in June of 1969, at the time he took possession of the children. At the time of trial in the fall of 1970, Andrew was approximately 4 1/2 years old, and still in the custody of his mother. The evidence is undisputed that the apartment of the Townsends in California is adequate and attractive. Mr. Townsend is employed as a truck driver. Mary Marcus Townsend is a long distance telephone operator.
The evidence is also undisputed that the trailer house of the Huffmans is adequate and attractive and that they have provided a good home for Lawrence. Mr. Huffman was a construction inspector for the Bureau of Reclamation in the power transmission division. The evidence does indicate that Mr. Huffman is gone from home approximately 50 percent of the time except on weekends. The neighbors in O'Neill who testified had known the Huffmans for approximately 2 years. The Huffmans were married in 1963. Mrs. Huffman was divorced from a prior husband in 1961 or 1962, and had a daughter who was 10 years old at the time of trial.
Certain related and collateral facts are material and relevant. In the fall of 1969, the Huffmans filed a petition for their appointment as guardian of the person and property of Lawrence Marcus in the county court of Holt County, Nebraska. Decree was entered and appointment was made. Mary Marcus received no notice of the proceedings and none was published. Sometime in 1970, the Huffmans filed a petition for adoption. The grounds for adoption were abandonment. The petition, verified by James D. Huffman, contrary to his testimony in this action, asserted that Lawrence Marcus had been abandoned in the Los Angeles police department, and that Mr. Huffman had acquired him there. No relinquishment was filed from either parent. The adoption proceeding was later dismissed.
It is also noteworthy that Mrs. Huffman, although present in court for 2 days of the hearing, did not testify nor did Tommy Marcus testify although his actual appearance in court is not reflected by the record.
The district court found that Mary Marcus had not taken, a real interest in her child as a natural mother would or should; that she had forfeited her preferential right to the custody of the child; and that she was not a fit and proper custodian for the child. The court thereupon denied the writ of habeas corpus and dismissed the case.
There is no question but that the governing rule is that the custody of a minor child is to be determined by the best interests of the child, with due regard for the superior rights of fit, proper, and suitable parents. Hausman v. Shields, 184 Neb. 88, 165 N.W.2d 581.
Counsel for the respondents have vigorously asserted that because this is a habeas corpus action, the petitioner has the burden to establish fitness to perform the duties imposed by the parental relationship, even though the petitioner is the parent. They also argue that a parent must establish that the best interests of the child will be better served by the parent than by strangers. We cannot agree.
It is clear from our decisions over a long period of time that courts may not properly deprive a parent of custody of a minor child unless it is affirmatively shown that such parent is unfit to perform the duties imposed by that relationship or has forfeited that right. Ball v. Ball, 180 Neb. 145, 141 N.W.2d 449; Hausman v. Shields, supra.
The respondents argue that the teenage premarital conduct here makes Mary Marcus permanently unfit to have custody of a child. That argument is unsupportable. If such a position were to be adopted by the courts, millions of parents would stand in danger of having their parental rights challenged.
The argument also completely disregards the fact that the California court granted exclusive custody to Mary Marcus, who was continuously a resident of California and still is. There is no evidence to warrant the upsetting or reversal of that decree. While the decree may not be binding upon a Nebraska court, it is at least entitled to due weight, even if it is not accorded full faith and credit.
The evidence here is wholly insufficient to establish an abandonment of her child by Mary Marcus, nor a forfeiture of her parental rights. She borrowed the money from her mother to make the first trip to Nebraska to reclaim her children less than 3 weeks after the children were first brought to Nebraska. She was arrested and threatened with a charge of kidnapping if she attempted thereafter to take her child. She was unable to retain counsel in O'Neill, Nebraska, and was forced to return to California with only one of her children. She continued in her efforts to regain her other child by telegraph, telephone, and letters and all were unsuccessful. Following her remarriage, with the assistance of her new husband, she was able to retain. counsel in Omaha, Nebraska, and commenced this action. She was required to return to Nebraska twice more before she could obtain a hearing upon her petition.
Meanwhile, the Huffmans, who always knew who and where the child's parents were, had completed proceedings for guardianship of the person and property of Lawrence Marcus, without notice to Mary Marcus and without any parental consents or relinquishments from either Mary Marcus or Tommy Marcus. It might be said that Mary Marcus continued the fight to regain the custody of her child against imposing obstacles. To say the least, the evidence flatly contradicts any assertion of abandonment or voluntary forfeiture of her parental rights.
The facts and circumstances here would be wholly insufficient to justify the State of Nebraska in attempting to take the child from the custody of Mary Marcus in a juvenile proceeding. If the State of Nebraska could not remove the custody of her child because of her premarital conduct, certainly a stranger should stand in no better position. Even if her delivery of the child to Mr. Huffman in June of 1969 were treated as an act of relinquishment performed under circumstances of distress or discouragement, her right to the custody of her child was not lost beyond recall. Barnes v. Morash, 156 Neb. 721, 57 N.W.2d 783.
The evidence here was simply insufficient to establish that Mary Marcus Townsend was unfit to perform the duties of a parent or that she had forfeited that right.
The judgment of the district court is reversed and the cause remanded with directions to grant the writ of habeas corpus and return the custody of Lawrence Marcus to Mary Marcus Townsend.
REVERSED AND REMANDED WITH DIRECTIONS.
SMITH, J., participating on briefs.