186 So. 325 | Miss. | 1939
Lead Opinion
This is a habeas corpus proceeding in the Chancery Court of Marion county, by the appellee, J.E. Warren, father of Mollie Jo Warren, a minor, against the appellants, Mr. and Mrs. A.S. Forbes, the maternal grandparents of the child, to recover her custody. The case was heard on bill, answer and proofs, resulting in a decree in favor of appellee. From that decree appellants prosecute this appeal.
The appellee married Mollie Forbes, daughter of the appellants, in June, 1923. Mollie Jo Warren, the only child of the marriage, was born March 22, 1924 — the mother died a few hours thereafter. The father and grandparents agreed that the child should remain with the latter. She has been with them ever since.
For some years the father was engaged as a railroad worker in Louisiana, Arkansas and Texas; during that time he did not often see the child. He quit railroad work and married in 1934. There are no children by this marriage. He bought a small farm in Marion county. When this action was begun in July, 1937, he was engaged in operating his farm, and he and his wife were residing thereon. The grandparents are also country people, residing on a farm in a neighborhood some distance from the father and stepmother. Their farm consists of about two hundred acres, on which there are tenants. The child will be fifteen years old on her next birthday. All her life she has been with her grandparents. The contributions of her father for her maintenance and care have been small compared to that of her *532 grandparents — they have borne very much the larger part of the cost of her care, maintenance and education, although there was no evidence that the father had declined to contribute thereto when called upon.
The evidence showed without conflict that the grandparents were eminently fitted, morally, intellectually and financially, to have the care and custody of the child. The evidence also tended to show, and the Chancellor necessarily found as a fact, that the father and stepmother were fit persons to have her custody and control. The grandfather and grandmother are about fifty-nine and fifty-three years of age, respectively, while the father is in his forties, and the stepmother in her late thirties. Before her marriage the stepmother was a school teacher.
The grandparents were willing, with the consent of the child, to grant her custody to her father and stepmother — they left it to the child. It is conceded by the father and stepmother that the child was not willing to go to them. The evidence showed, without conflict, that she was passionately opposed to going. There was some evidence tending to show that the change might jeopardize the health of the child. The change would result in new surroundings, new acquaintances and companions. There is no substantial conflict in the evidence that the happiness, welfare and best interests of the child are with her grandparents, and not with her father and stepmother. The question is, whether those considerations should be controlling, under the facts of this particular case. We are of opinion that they should be. It is true that, everything else being equal, the father is entitled to the custody of his child. Nevertheless, "The welfare of the child or children is the matter of chief importance; and the consideration of their welfare will prevail over any mere preponderance of legal right in one or the other party. . . . The age, sex and physical condition of the child are often important elements in determining what custody would be for its best welfare. . . . The wishes of children of sufficient capacity to choose for *533
themselves should be given especial consideration when their parents have, for a long time, voluntarily allowed them to live in the family of another, and the Court will make no coercive order in such cases to enforce the mere legal right of the parent to their custody against the manifest inclination and reasonable choice of the children to remain where they are." 20 R.C.L., Sec. 15, pages 601-603. These principles are supported by a wealth of authorities from other states, referred to in the notes. To the same effect are Cocke v. Hannum,
Bryant v. Brown,
What we are holding does not trench on Hibbette et al. v. Baines,
Reversed and judgment here for appellants.
Dissenting Opinion
The evidence in the case amply warranted the findings; and the law, as applied to these findings, sustains the decree rendered, and the case should be affirmed.
In human relations there are often heartbreaking situations which unfortunately cannot be avoided. The law of necessity must deal with these human relations, and operate under general rules, so that citizens and courts may act in accordance with the law.
In the argument before Division B of this Court it was admitted that the appellee, Warren, and his wife were suitable persons to have charge of Mr. Warren's daughter; but the argument proceeded upon the ground that the affections of the grandparents had grown up around the child, that they had cared for her a long time, and that the courts should not disturb the relation thus established. As in most cases, the evidence is apparently conflicting upon many features of the case; but there is no evidence which would warrant the finding by this Court that J.E. Warren or his wife were of such character, or guilty of such conduct, as would forfeit his right to the custody of his child. On the evidence the court, in rendering an opinion, made a finding of fact which reads as follows: *535
"The court finds that Mollie Jo Warren, minor child of Mr. and Mrs. J.E. Warren, was born on the 22nd day of March, 1924. Mrs. J.E. Warren, the mother of said child, was the daughter of Mr. and Mrs. A.S. Forbes, respondents here. Mrs. J.E. Warren, mother of Mollie Jo Warren, died about three or four hours after the birth of Mollie Jo and the child was placed by her father in the home of Mr. and Mrs. A.S. Forbes, who have had her custody since. The court finds that the child at the time of the institution of this habeas corpus proceeding was over the age of thirteen years, and had attained the age of fourteen before judgment in this cause was entered.
"The court finds that the child expresses and has a sincere desire to remain in the custody of her maternal grandparents, Mr. and Mrs. A.S. Forbes, and if her wishes were considered alone she would select the home and custody of her maternal grandparents. The court finds that the father, J.E. Warren, married again on the 23rd day of February, 1934. The court finds from the evidence in this case that there is nothing against the character or suitability of either the maternal grandparents, Mr. and Mrs. A.S. Forbes, or the father, J.E. Warren, or his second wife, Mrs. J.E. Warren, that would render either of them unsuitable to have the care, custody and control of said child and that the physical and spiritual welfare could be safely entrusted to either the maternal grandparents or the father and his second wife, Mrs. J.E. Warren, and that the child has received the proper care and attention by the maternal grandparents during the time they have had her custody.
"Respondents forcibly argue and urge that the father, J.E. Warren, abandoned his child and that the best interest of the child, Mollie Jo Warren, would be best served by permitting her to remain with her maternal grandparents with whom she desires to live but the court finds from all the evidence in the case that the father, J.E. Warren, did not without just cause forsake or desert *536 his child as to show any intent to shirk or evade his duty to her or that he sought to evade the duty, trouble or expense of rearing it or had a reckless disregard for its welfare or that he was guilty of such abandonment of it as to bar his right to afterward reclaim its custody and for this reason the court cannot adhere to the wishes of the child to remain with her maternal grandparents and for this reason it is the duty of the court to award the custody of the child to the petitioner, J.E. Warren. A decree may be drawn accordingly."
That this Court is bound by the findings of fact by the Chancellor on conflicting evidence is abundantly established by the authorities in this State; and numerous cases will be found in 2 Mississippi Digest, annotated, title Appeal and Error, Key No. 1001 to 1024, and need not be reviewed or set forth in this opinion.
The decision of the majority in this case has unsettled the law and made it uncertain, and is contrary to the decisions announced throughout the history of the State upon the subject, and especially since the case of Hibbette et al. v. Baines,
We have also held that where children had, under such an arrangement, remained with their grandmother *537 for ten years, during which time their father contributed in a considerable degree to their needs and visited them several times a year, that it cannot be said, on his claiming custody of them at the death of their grandmother, that he had abandoned them in favor of their aunts, and they should be awarded to him where it appears they are more liable to be separated by remaining with the aunts, and that he is of good moral character and in good financial condition. And, further, that the action of a trial court in refusing, in habeas corpus proceedings, to assent to the preference expressed by the children, aged ten and thirteen years, to remain with their maternal aunts, rather than to go with their father, would not be disturbed on appeal.
The opinion in the case of Hibbette v. Baines, supra, is an exhaustive and well-reasoned one, and it will be noted in reading the opinion that there, as here, the father had no other children, and that his second wife was childless.
In the present case the wife is a lady of excellent character, having nine years of experience as a school teacher, dealing with children; and had lived in the home of her sister, and assisted in rearing the child of her sister — the evidence showing that the child knew practically no difference in its affection for its mother and its aunt, the wife of appellee here.
Not only have the decisions since 1900 conformed to the doctrine announced in the case of Hibbette v. Baines, supra, but the statutes of the state have, for a long time, recognized the right of the parents, as against all others, to the custody and control of their children, and the guardianship of their persons. The present statute, section 1863, Code of 1930, gives the parents equal rights to the custody and control of their children, but provides that on the death of either parent, the guardianship shall be awarded to the other; providing as the sole qualification that should the father or mother be unsuitable to discharge the duties of guardianship, then the court, or *538 chancellor in vacation, may appoint some suitable person, or having appointed the father or mother, may remove him or her if it should appear that such person is unsuitable, and appoint a suitable person. This statute is in harmony with the laws of natural rights, which rise superior to the arbitrary or regulatory rights of the State, or any of its agencies, to interfere with a parent's rights, where the latter is a good moral character, and has done nothing to forfeit those rights.
In Moore v. Christian,
"Nature gives to parents that right to the custody of their children which the law merely recognizes and enforces. It is scarcely less sacred than the right to life and liberty, and can never be denied save by showing the bad character of the parent, or some exceptional circumstances which render its enforcement inimical to the best interests of the child. Our statute law provides for appointing guardians of the estates of minors, whether their parents are living or dead; but expressly forbids the appointment of guardians of their persons if either parent be alive, thus recognizing in the broadest manner the parental right to their custody. Code 1871, section 1202. So, too, all officers and courts are forbidden to apprentice any minor without the consent of the parent, unless it be shown that the parent has failed or been unable to take charge of the child, or is of immoral habits. Code 1871, section 1793. No higher evidence could be afforded of the sanctity with which our law invests the parental right of custody, or rather recognizes and protects the right given by nature and by God. It is, indeed, *539 held that this parental right must give way to the permanent interest of the child, if it be shown that the life, or health, or morals of the latter will be prejudiced, or his usefulness as a citizen seriously jeopardized, by remaining under the parental control; but it is not meant by this that the courts can sit in judgment upon the question whether a wealthy stranger can give to the child more worldly advantages than an indigent parent. This would be to make poverty a crime, and to punish it by the bitterest of penalties. In the case at bar, it is not shown, or attempted to be shown, that the mother is in any respect an improper person to control and govern her own offspring. Nothing is alleged against her except her poverty and her dependent condition, and that would seem to furnish a reason rather in favor of than against her right to demand and obtain the control and the services of that one of her children who can aid her in rearing and supporting the others.
"The boy, it is true, expresses a preference to remain with the appellee; but, while in doubtful cases the wishes of a child of this age will be sought, and to some extent be observed, we cannot for a moment agree that a boy of thirteen can be allowed, at pleasure, to abandon his filial duties, and select elsewhere a home more agreeable either to his desires or his worldly interests. So to hold would simply be to offer a premium to the children of the poor to shirk the duties to which their station in life has called them, and to permit them, at the sacrifice of all the natural affections, to set about bettering their condition, at a period of life when the law dedicates both their persons and their services to parental control."
In Bullard v. Welch,
In the case of Bryant v. Brown,
"Primarily the parents, or those standing in loco parentis to minor children, have the constitutional right, under the Fourteenth Amendment, to the custody and control of such minor children, and may give them such education and training as in their judgment may seem best for the welfare of the child and for the good of society. Meyer v. Nebraska,
This opinion reviewed the authorities upon the subject of the right of the parent as against the State or government, and the conditions under which the custody of the child might be taken from the parents. Judge Anderson dissented, on the ground that the statute authorizing taking charge of the delinquent child for purposes of discipline, education and control, was beyond the power of the Legislature; because, in his opinion, the proof did not warrant the proceedings there involved. In the course of his dissent he recognized the constitutional *542 right of a parent to the custody and control of a child until the parent had forfeited that right by misconduct. He said:
"The parent has the right to the care, custody, and assistance of his child. The duty to maintain and protect it is a principle of natural law. He may even justify an assault and battery, in the defense of his children, and uphold them in their lawsuits. Thus the law recognizes the power of parental affection, and excuses acts which, in the absence of such a relation, would be punished. Another branch of parental duty, strongly inculcated by writers on natural law, is the education of children. To aid in the performance of these duties, and enforce obedience, parents have authority over them. The municipal law should not disturb this relation, except for the strongest reasons. The ease with which it may be disrupted under the laws in question, the slight evidence required, and the informal mode of procedure, make them conflict with the natural right of the parent. Before any abridgment of the right, gross misconduct or almost total unfitness on the part of the parent should be clearly proved. This power is an emanation from God, and every attempt to infringe upon it, except from dire necessity, should be resisted in all well-governed States. `In this country, the hope of the child, in respect to its education and future advancement, is mainly dependent upon the father; for this he struggles and toils through life, the desire of its accomplishment operating as one of the most powerful incentives to industry and thrift. The violent abruption of this relation would not only tend to wither these motives to action, but necessarily, in time, alienate the father's natural affections.' . . . The Bill of Rights declares that `all men are, by nature, free and independent, and have certain inherent and inalienable rights — among these are life, liberty and the pursuit of happiness.' This language is not restrictive; it is broad and comprehensive, and declares a grand truth, that `all men,' all people, everywhere, have the inherent and inalienable *543 right to liberty. Shall we say to the children of the State, you shall not enjoy this right — a right independent of all human laws and regulations? It is declared in the Constitution, is higher than Constitution and law, and should be held forever sacred." And at page 1341 of 60 A.L.R., 118 So. at page 194, he further said: "I deny the constitutional right of the State to take a child from its parents to rear and educate, without their consent, unless it be shown that the parents are unfit for the undertaking. The statute involved authorizes exactly that to be done. As stated, there was no effort to show that Howard Bryant's father and mother were unfit to have his custody and training. The parents of a child are its guardians. They are so by the law of nature. God has so decreed, and that decree cannot be rightfully violated by the State, any more than it can be by man, unless the parents have failed to carry out their sacred trust."
Near the bottom of that page he says: "The companionship and services of their children are a valuable property right given their parents both by the laws of nature, and by the laws of the State. Like any other property right, it cannot be arbitrarily taken away from them by the State. To take such a property right away, the State must show the parents have done something to forfeit it. Otherwise they would be deprived of their right in violation of the due process provision of the federal and state Constitutions."
In Nickle v. Burnett,
In numerous cases we have held that the father is under the duty to support his child, and this duty he must perform. There is no condition in the law, so far as I have found, by which a father can get rid of this duty to support and care for his child. He may forfeit his right to its custody and control if he is morally unfit, or if he wilfully and persistently neglects, to exercise such control, and permits it to grow up under circumstances tending to make a criminal of it. There is no more sacred right known to the law than that existing between parent and child.
As to the decisions of the United States Supreme Court cited in Bryant v. Brown, supra, the right of the parent to marry and rear a family is one of the liberties secured to the citizen against state action without due process of law. The home is the foundation of the State and of society. The welfare of the State and of society requires that the home be maintained, and that its sanctities be inviolate so long as the members of the home conduct themselves in a moral manner. Whenever the state takes charge of the children merely because some other person may think the child will fare better, or be better trained or developed in another home than that of its parents, then the State becomes a tyrant, and American *545 ideals perish. The child, it is true, has a right to be protected from vice and crime, but mere differences in financial or social advantages are wholly insufficient to justify interference by the State through its courts or otherwise.
Instead of taking the Constitution as a guide, and justice as a goal, the decision here, in its ultimate effect, adopts the grandparents' sentiments and the opinions of infancy as a guide and goal, leaving the law uncertain, and dependent upon the particular ideas of particular judges, who may pass upon particular cases, to be governed by their individual ideas, rather than by the law of the land.
The majority opinion cites Cocke v. Hannum,
The majority opinion also cites and relies upon Maples v. Maples,
In my opinion, these cases cannot be said to justify departure from numerous cases in which we have held as above stated.
The opinion of the majority also cited the case of McShan v. McShan,
I fear that we have unsettled the law, and reached a conclusion that will trouble us in the future, because I can *547 see no way to harmonize the present decision with the many referred to, and quoted from above.
The judgment should be affirmed.