19 S.W.2d 959 | Ky. Ct. App. | 1929
Reversing.
The controversy in this case is between the father and maternal grandfather of Eleanor Flo Bird and concerns her custody. The circuit court decided in favor of the father, and the grandfather appeals.
Elmer F. Bird, on February 3, 1916, married Florence Cummins, a daughter of the appellant, L.G. Cummins. Eleanor Flo Bird is their child, and on November 20, 1928, was 12 years old. Before the baby was a year old, Mrs. Bird obtained a divorce from her husband on the ground of cruel and inhuman treatment. She was awarded the custody of the infant, and, by an agreed order, the father was directed to pay $5 per month toward its support. The mother and child went to the home of the appellant, where they remained until March, 1921, when Mrs. Bird remarried. The appellee paid the monthly allowance of $5 for the first 2 or 3 years, but since then has done nothing for the child or contributed anything to its support. Although living near, he made no effort to see his baby or to cultivate her affection. *297 Until litigation arose concerning her custody, she did not know him at sight. He did not so much as remember her on her birthdays or send her a present at Christmas. For a full decade he was utterly indifferent toward her and completely ignored her existence. His explanation is that his estrangement from the mother and her family led him to believe that efforts on his part to cultivate the love of the child might cause trouble or unpleasantness, and he refrained from so doing and suppressed his own desire to see and serve her out of consideration for the welfare of the child.
In March, 1927, the mother died and the little girl returned to the home of her grandparents. During the 6 years following her mother's remarriage the little girl was nominally with her mother, but actually spent much of her time with her grandparents, who have a daughter, Laura Nell, about the age of Eleanor Flo. The two little girls have grown up together, are devoted to each other, and have been intimate and constant companions. They go together to church and school and room together at home. The grandparents show no partiality between them, but provide alike for each, liberally according to their means. After the death of the child's mother, appellee set about to gain control of her. His efforts in that direction were unsuccessful, and he instituted against appellant this action in equity to vindicate his legal right to the custody and control of his child. He rests his claim upon section 2016, Kentucky Statutes, which provides "that the father and mother shall have the joint custody, nurture and education of their infant child, or children, and in the event of the death of either one of the parents, father or mother, the survivor, if suited to the trust, shall have the custody, nurture and education of such infant child or children."
It is insisted that Mr. Bird is suited to the trust, and, since he is her sole surviving parent, that he is entitled to the custody and control of his child. Mason v. Williams,
It is shown in this case that the child has a good home in a rural community where she is provided with every safeguard, convenience, and opportunity. The religious and educational advantages are ample, and the child has been given the full benefit of both. Appellant and his wife are people of excellent character, devoted to the child, capable of doing and willingly performing for her welfare all that could be suggested or desired. The child is happily situated, and the companionship afforded by her aunt, of practically the same age, introduces into the case an important and irreplaceable factor. Cf. Shelton v. Hensley,
It is said that Mr. Bird is a man of good character and able to support his child. He served his country faithfully in war and received an honorable discharge from the army, which certifies to the uniform excellence of his character and conduct as a soldier. He has a permanent and responsible position with one of the great railway systems of the country, with years of service to his credit. His wages are substantial, and he is able to bear the expense of completing the rearing and education of his child. His acquaintances, neighbors, and fellow workmen bear cheerful testimony to his punctuality in the performance of his various obligations and to his good standing in the community where he lives. The chancellor construed the statute to mean that the right of a surviving parent was absolute, unless unsuited to the trust by reason of some moral defect or kindred delinquency. As Mr. Bird's morals and habits were not assailed, the circuit court thought he was entitled to the custody of his child. It is obvious, however, that a man may be of good character and financially secure, and yet not suited to the trust of rearing and educating a 12 year *300 old girl, with whom he has had no previous acquaintance or contact, even though it be his own child.
There are other considerations and circumstances to be weighed. The appellant urges that Mr. Bird's right to claim the custody of his child was forfeited, and his unsuitability for the trust demonstrated, by his failure for years to do anything for the child or to evince any interest in her welfare. 29 Cyc. 1586; 20 R. C. L. 599; Strangway v. Allen,
It is also urged that the present situation of the girl is so happy and wholesome, and so conducive to her permanent welfare, that the experiment of a change should not be undertaken even to satisfy the demands of her father. The breaking up of established relationships of a type beneficial to the child is a factor to be considered in determining the suitability of a claimant to the custody of the child. In Rallihan v. Motschmann,
Eleanor Flo Bird is a bright, normal, and happy child. She testified frankly and intelligently and expressed an ardent desire to remain in her present home with her grandparents. When asked about her attitude upon that subject, she said it was her wish to live with her grandparents and Laura Nell (her aunt of about the same age). In answer to the question, "How would you feel if they should take you away?" she expressed the depth of her feeling in these words, "I feel I would just die the minute the word was said." The determination of that question, of course, is not for the child, but, upon the issue of her custody, the wishes of an intelligent *301
girl 12 years old are entitled to respect, and in case of doubt, or where the considerations affecting a decision may be in equipoise, her desire in the matter may be decisive. 20 R. C. L. 599. Ellis v. Jessup, 11 Bush, 403; Stapleton v. Poynter,
The appellee has no property or home of his own. He has made little or no provision for the future. He lives with his parents and proposes to take his child there. His father, mother, and sister, with whom he lives, each express a willingness for the child to be brought there; but their conduct heretofore has not been such as to manifest any interest in the child. Cf. Smart v. Bree,
A girl at the age of 12 is fortunate to have the care and counsel of a good woman, whose control of and contact with the girl have been of such duration as to establish mutual confidence; and, no matter how willing and worthy a new custodian might be, it necessarily would require time to overcome the diffidence or aversion that would be natural at the inception of a new relationship, and to establish anew the conditions conducive to the welfare of the girl. The problems of parentage are *302 never more serious or important than at this period in the life of a girl. It is not a good time to introduce a radical, unwelcome, and undesired change in her situation when that existing is satisfactory. No reason is apparent why the appellee should not first endeavor to win the affection and esteem of his child by manifesting his worthiness and willingness to do a father's part. His opportunity in that regard will not be lessened or restricted by the child remaining where she is. Indeed, it might be enlarged, with the irritating question of a change in her custody eliminated. If the father would consider and discharge his duties toward the child awhile before demanding a supposed right to her custody, his problem might be simplified, or disappear entirely. We doubt not that proper efforts on the father's part to gain the girl's admiration, affection, and gratitude, assisted by the natural ties of blood, would be richly rewarded. What has been lost by neglect, aloofness, and indifference might readily be reclaimed by fatherly interest, kindness, and affection.
Great responsibilities and duties must be met and performed by the courts, and none of them are more delicate or difficult than the determination of questions respecting the custody of children. The ties of blood and the claims of love often struggle for supremacy. When the welfare of the child and legal rights are clear, the duty of the court is plain. But what may be best for the welfare of the child is often difficult to determine, involving, not only a consideration of present facts, but in a large measure, a prophecy of future circumstances. The child's vital interest may be affected by a decision changing its status, thus admonishing a court that caution in such cases should govern its steps. The promptings of parental love should reconcile the father to the undoubted wisdom of maintaining the present happy situation of his child. Gratitude to her benefactors should impel him to help rather than to harass them in sustaining the obligations they have voluntarily assumed, and we venture to suggest that he will find more happiness in serving the interests of the child where she is than could be realized by wrestling her from the only home she has ever known. Appellee may realize his own flagrant failure of duty toward the child in the past, and wish, after securing her custody, to make reparation by kindness; but atonement for the dereliction is more likely to be found in efforts to *303 promote the comfort and happiness of the child than by inflicting upon her another tragic experience.
The duty of denying to a father the custody of his child is a serious and solemn one, but when the father for years has relegated to others his duties and responsibilities respecting the child, and when those others, actuated by love and affected by the ties of kindred, have accepted the responsibilities and performed the duties thus thrust upon them, their rights are not to be ignored, but should be preserved, unless the change proposed is consistent with the legal rights and would benefit the child, which is always the peculiar care of the court. This record not only fails to show that the child's welfare would be promoted by a change in her custody, but makes it clear beyond cavil that her supreme good will be subserved, and the legal rights of the litigants preserved, by permitting the existing situation of the child to remain undisturbed.
The considerations suggested constrain us to the conclusion that the chancellor erred in this case in adjudging a change in the control and custody of the little girl.
The judgment is reversed, with directions to dismiss the petition.