312 Ky. 494 | Ky. Ct. App. | 1950
Affirming.
This is a habeas corpus proceeding having incidents of a suit in equity instituted by a mother to obtain the custody of her child from his paternal grandparents. In a former proceeding between the same parties, a county judge pro tern rendered judgment for the respondents. On appeal we held the county judge or court was without jurisdiction since it was not shown that there was no circuit judge in the county at the time. We were without authority to consider any question except that one. The appeal was, therefore, dismissed since the judgment was void. Fudge v. Brown, 311 Ky. 381, 224 S. W. 2d 137.
The respondents raised the question, and now argue,
The petition is styled, “Before the Judge of the Knox County and Quarterly Courts” and is simply marked, “Filed December 31, 1949.” Complaint is made that it was not an action in court and that it could not have been in both the county and quarterly courts and does not show that it was filed in either. It- is to be observed, first, that the Criminal Code of Practice provision calls for the issuance of the writ of habeas corpus by “any judge of a county” court when there is no circuit judge in the county. Since it is in his judicial capacity and not individual that the judge acts, the proceeding, in reality, is one in the court over which he presides. Yet, his action is without a jury or other assistance. The style of the case, as one before a judge of the named court, is in strict conformity with the Criminal Code of Practice and certainly is sufficient. To determine otherwise would be to exalt form above substance and recognize technicality over reality.
The county judge issued the writ and directed the surrender of the child’s custody to his mother, now Mrs. Stella Fudge. The grandparents appeal.
In the language of the day, Mrs. Fudge was a “war bride.” She married John Brown, an American soldier stationed in England, after they had been acquainted for nearly a year. He was sent to France about a week after the marriage and did not return to England. He made provision for her and the child to come to this country and provided an apartment for them in Xenia, Ohio, where he lived. But he did not meet her at the train and never lived with her. The parties do not agree as to
The father’s parents visited the child and his mother in Xenia. When he was a year old, they brought the mother and him to Knox County for a visit and suggested that they take care of the child since the mother was working, and it was necessary that he be cared for by another wMle she was at work. . She consented. Afterwards she came to Knox County to visit them and the child as often as she could. She sent all or most of the money contributed by the child’s father for his care to his grandparents. There was no trouble until the mother had remarried and wanted her child.- Her request was persistently denied. Finally, the condition became such that another son who lived with the grandparents brought out a shotgun and threatened her.
The mother married John Fudge, and they live near a village about five miles from Xenia, Ohio. He makes good wages as an upholsterer in that city and lives on a four acre place which he bought under the “G. I. Bill of Bights. ’ ’ They now have a child about a year old and are well established. Fudge testified, “I want very much to bring him back with us” and, “I would like to have him grow up with my other child and make a nice brother for him. ” He had put up the money for this litigation and promised that he would take care of this cMld the same as his own. Both the mother and her husband are of good habits and industrious. There is no reflection upon the mother’s character except the child may have been begotten before marriage. Hnder the circumstances we do not regard that as a material consideration. There are some insinuations by her former husband and the construction by his parents of some general statement they say she made to them, all of wMch she denied.
The character of the parties and their ability to care for this child from the standpoint of finances, education and religious training is substantially the same.
; Of all the various classes of cases that come to us there is none more trying or often more difficult than that which relates to the care and custody of a little child. His life and destiny are within the responsibility and determination of the court. Therefore, always the prime consideration is the child’s welfare. But coupled with this, when conditions are equal or nearly so, is the natural right of a parent. As stated in Cummins v. Bird, 230 Ky. 296, 19 S. W. 2d 959, 960, “The judicial inquiry is not confined or l’mited to the moral character and financial ability of the particular parent that may be asserting a right to the custody of his child. It comprehends a proper consideration of those essential elements of the problem, but, in addition thereto, it requires due weight to be given to all other facts and factors that have a bearing on the complex and responsible duty of rearing, training, and fostering a child according to its potential capacity and consistently with its individual character and needs.”
In that case the court decided that the welfare of a child required that her custody be retained by her grandparents. One of the most potent considerations was the previous neglect of the father, who was seeking to regain her custody. That condition in no way applies in the present case in respect of the mother.
We had circumstances similar to this case in Setser v. Caldwell, 300 Ky. 356, 188 S. W. 2d 451, where a mother sought custody of her two children from their paternal grandparents. We again declared that the natural right of a parent will prevail against other persons
We are of opinion, therefore, that the county judge rightly determined the case, and the judgment is affirmed.