*1 950
excess of seven and if years this matter had been pre- evidence, sented on a as to the question weight would be inclined to hold on the us record before that preponderance of evidence shows had held the lands openly, notoriously for more adversely than seven years.
Therefore, I respectfully concur. FEIGHT et al v. Alice Gay FEIGHT
Merle 140 490 S.W. 2d 5-6106 12, delivered Opinion February 1973 Loh, for Phillip appellants. H. Gordon, A.,
Gordon & P. for appellee. George This case involves the Smith, Rose Justice. custody of two boys, and Eric who Feight, were Jeff nine and respectively old years seven when the appellee’s petition was filed the court below. The principal appellants are the children’s who paternal grandparents, appeal confirming from an order the mother’s previously sons. her adjudicated custody right Richard and Alice parents, Gay Feight, 1969, in June, divorced Arkansas of the chil- custody *2 dren then in the mother. In of being September that Arizona, the matter was in year custody of litigated where the then The court living. awarded parties of mother and the custody the children the ordered father a month for their There- pay support. $100 after the moved with the children Mason mother Iowa, obtained where she City, employment. father, the lives in Arizona
Richard still Feight, in this and is cember, a In late De- actually bystander dispute. 1971, Merle the paternal grandparents, Feight wife, and, and his mission, to Iowa with the mother’s per- went the two in boys back to their farm
brought Arkansas, for a one week’s Conway county, stipulated week, however, visit. of At the that the elder expiration went back on their re- Feights agreement, refusing turn the children to their mother. four months Some later the filed the habeas appellee action present corpus decree, to recover the actual of her sons. The custody said, as we have her favor.
The chancellor was under right, either of the two settled that control principles this kind. dispute First, a award of judicial custody will not be modified unless it is shown that there are conditions which changed demonstrate that a modification the be decree will Davis, to the best interest of the children. Wilkins v. 304, Ark. 530 (1968); Keneipp Phillips, 244 S.W. v. 424 2d 264, Ark. (1946); Myers Myers, 210 Ark. 196 S.W. v. 2d 220 207 169, S.W. 865 (1944). 179 2d fact, Here there is no such In there is showing. no at all proof of the conditions that existed when the Arizona court entered its order In the 1969. pre- sent the proceedings es- appellants have proved nothing, appellee that the sentially, except is a strict disciplinarian shown, in the matter of bringing up her sons. It is not however, that she was not strict when equally custody place. Consequently was awarded to her in the first the necessary proof wanting. is conditions changed that, it
Secondly, is firmly settled as between pa- rent and a grandparent the (or anyone law else), awards
952 he or she is incompetent unless custody parent Keneipp or unfit of the v. custody child. 355, Durham, Baker v. Phillips, supra; 95 Ark. S.W. 129 privotal (1910). Thus is the fitness issue here sons. to have the care of her own appellee if fitness were Even the question appellee’s us, issue not the chan- before we could only say as he did. All cellor was case wrong deciding either from unfavorable to the comes evidence or, from lips her own directly indirectly, lips sons, of her also were only quoted who but extensively No witness grandparents. except and the to have first- mother two youngsters purported hand on the boys information about what went while *3 were with their mother in Iowa. living need not
We read between the lines very deeply the record to understand the two after why boys, having been four months the unlawful care of for their grandparents trial, the their to remain
preceding preferred mother, there. testified that dur- They who worked beds, them ing day, to make their own required up floors, dishes, to scrub to wash and to their do own Their do laundry. mother them for punished failing their chores. also about the food They complained they were our given, ability we have doubts about though of little children to of their pass upon sufficiency diet. view,
From the conditions boys’ upon point farm were ideal. were grandparents’ They apparently no given a chores had a Shetland perform. pony, They set, and free could television access to a radio. They whenever, whatever, eat wanted to. apparently they The indication of months only the four discipline during ais statement once boy was younger spanked with a switch.
The without appellee positively, apology, that she is strict her with children. She them chores gives to perform and them for misconduct. When punishes the younger had a tantrum boy and refused to stop she held his screaming head under a for water faucet about ten seconds. There had been one or two previous Upon occasion, incidents Eric refused to the same kind. another when anything required do, do that he was (which she locked him in a basement room had a win- dow) for about half an hour. point The record does reflect one disinterested employed The view. testified that her husband lawyer department” to have “the social in- services vestigate appellee’s words, conditions her In home. “they evening my came at their leisure one to see home my very they impres- situation and said much myself. children, sed with the fered to soever home and And of- go any to court for if Ime had trouble what- in the quoted future.” is It immaterial that the testimony to the hearsay, objection for no was made either appellee’s testimony grandparents, or to that of the entirely whose evidence was almost a narration of what the two children had told them. conclusion, In we should it make clear that it is responsibility weigh the courts’ this mother’s strict- against grandparents’ permissiveness.
ness Not even Solomon could make that with decision the assurance being right. only questions before us are whether appellants change shown of conditions since the Arizona ap- court entered its decree and whether the pellee bring up is so unfit her own children that permanently deprived she "should custody. be of their *4 say upon We cannot either issue that the chancellor’s against weight decision is the of the evidence.
Affirmed. J.,C. dissents.
Harris, dissenting. Chief is Justice, It some- Harris, Carleton dissenting what with reluctance that these re- write always strong marks for I have been a believer in home discipline, many delinquent and am of the view that boy girl acquired deplorable or because has status discipline words, of a lack of at I sometimes home. In other many, by delinquents more, think that as are created being overprivileged, by being underprivileged. as None- bring myself disciplinary theless, approve I cannot by methods used this mother on her two sons. remarks, In making these I shall not on depend testimony of the grandparents the (who acquired information from the since this is boys) hearsay (though and shall objected to) only relate some of the incidents themselves, boys or incidents admitted the mother.
The four most notable view are examples (1) and breaking giving away boys’ and toys presents, (2) the incarceration of the younger boys what and room”, mother referred to as the “devil’s (3) sending breakfast, children to school without and (4) holding head younger boy’s under a water In discussing faucet. instances, record, these let us though look to the oc- currences will not be discussed in the order listed. The Eric, two boys, are nine and Jeffery years seven age respectively. The mother admitted Eric’s holding times, head under a water several because he was having a that she did this stating “tantrum, screaming yelling”. extreme, Another which I punishment, consider was ad- ministered on occasions when the mother stated Eric was She took him misbehaving. (referred basement to as the “devil’s and locked room”) him in by himself. There were no in the lights basement and he would be kept there for some period time as his punishment. From the record: What
“Q. other kind of punishment used you other than him putting underneath the water? A. And him. spanking What else?
Q. just A. And there was a time when he decided he would not do do. I said he anything required fine, if you’ve family, you from the separated yourself down in room down go the basement and stay there. How Q. did long he in that room stay down there? *5 Half an A. hour maybe. How times did
Q. many you leave him down there all day? anywhere day.
A. I never shut him I all never shut away anywhere. Perhaps thirty him minutes or less. punishments you ahead, other Go what Q. used?
A. That’s it. you Do know about this devil’s
Q. room? telling you
A. That’s the little room was about. you put any And him this Did it have Q. room? lights in it? Lights
A. in it? Yes.
Q. No, it
A. didn’t. you Did lock the door?
Q. Yes, I
A. did.
Q. What was in the room? A. things a bunch little old suitcases and Just like that. junk? a bunch Q. Just
A. Uh-huh. long you keep How
Q. would him in a locked room like that? Maybe
A. a half an hour. light lights? No window Q. electric light A. There was a window and there was room that came in around the The door is not door. tight door at all.” *6 956 proper discipline agree includes induc-
I cannot ing dark. a to the child fear According nine-year-old Jeffery, son, the two to the scrubbing floors, boys assigned tasks, various were every mopping, washing ing, night next and the morn- dishes certainly making (and beds, I have own etc. their objection assigning jobs). However, the tasks no Jeffery performed by if tasks not testified that were work, from the time the mother returned home they supper, boys if did not went to bed without and complete morning they A.M., chores didn’t 7:00 boys approve sending get any these breakfast. I cannot well be to school without breakfast since it could detrimental their health. my opinion, facts,
More inhumane than these was giving away destroying the action of this mother the that if he didn’t and toys presents given and Eric testified children.
get time, his work done on up pick toy say enjoy going would having a and “You’re not toy” stomp this and would on also it. He said given toys that she had “Goodwill”, some of his and clothes
including pair of boots that he had present, permitted as a received and was never wear.1 toys breaking denied giving away. mother and she also admitted them From the record: toys they
“Q. What—tell us about the have. A few toys? toys? Lot they provided A. Since have been divorced have been great toys through grandparents amount of their through very their father. There was little give left that I could them. your my house, Is like one Q. closet it’s over- flowing toys? with right. A. That’s who, grandparents given by at the time of the 1 These boots were
trial, keeping these children. And—Q. get toys
A. I saw fit to rid most of provide *7 injurious things myself.” so I could these you give Did away boys’ Q. presents from time to time bicycles? like Yes, A. I did. you replace
DidQ. them? replaced
A. I have most of them. you replace bicycles?
DidQ.
A. I have not.” breaking giving away toys presents This and and utterly seems only senseless, to me to be and I can conclude that this is occasioned hatred of the father parents, and his a not desirable sentiment or trait impart to one’s children. only that, Not only but the mother receives $300.00 per pay, month hardly take-home and she can afford to spend portion money a replacing toys of this and presents. I have not mentioned several other matters2 already the children mentioned, since ones my opinion, preclude being should the mother from given custody present at time. majority The mention that been no show- there has ing change original a circumstances since the testimony given decree. The evidence not does reflect the granted, things at time that the divorce was but the awarding place have mentioned took after the instance, Jeffery slept 2 For in the basement testified that he and his brother bunks camping The bunk beds.” camping. them on beds "made for We called they cloth on them. springs. contained no “All had was mattresses or Just like a cot.” m custody. actually course, a there been and Of has
divorce change grand- living are with their the children that parents, to their mother. do desire return mother and Also, friends lived with the other women period complain- time, the children children for her whipped board, ing them with a called that these women the “board of education”. majority mention evidence denotes also that investigated by the the home was Social Services
Department. Appellee testified: my lawyer “I assume husband had hired living investigated my of communal situation my evening they leisure see came at their one very they home much said and impressed situation and *8 children, with the home and myself. go if me I had offered to court for And any in the future.” trouble whatsoever though present litigation that, The fact remains testimony, .through custody action, shows a deposition department. no full-scale given by employees otherwise, custody might appellee presently if lost It be that recognize mentioned, of the actions she virtue would person, the law does not the acts even condone parent, beyond in ad- realm reason going ministering disciplinary action. respectfully I, therefore, dissent.