211 P. 705 | Utah | 1922
This is an action to review certain proceedings of the district court of Salt Lake county, whereby the custody and control of a minor child, to wit, Betty Elaine Gitsch, was taken from the plaintiff and given to the defendant Inez Hurlbut. Plaintiff and defendant Inez Hurlbut were formerly husband and wife, and the minor child, 4y2 years of age, is the issue of said marriage.
It is alleged in the complaint that on the 22d day of September, 1922, the said Inez Hurlbut commenced an action in the said district court against the plaintiff herein, praying for an’ order of said court awarding her the custody and control of the child; that in her petition filed in said action she also prayed for the temporary custody of the child pending the final determination of the case. It is further alleged in plaintiff’s complaint that without any notice whatever to plaintiff the defendant judge of said court on the 23d day of September, 1922, made and entered an order against the plaintiff herein to show cause on the 29th day of said month why the said Inez Hurlbut should not be awarded the custody, care and control of said child, and in addition thereto the said court ordered that pending the hearing she should have the temporary custody of the child, but should not remove it from the jurisdiction of the court until the application for its custody and control had been finally determined. The complaint further alleges that in pursuance of said order, which was made without notice to plaintiff and without giving him an opportunity to be heard, the child was taken from his custody, and has ever since
It is difficult to conceive of a state of facts in which such an order as that complained of in this proceeding would be justified, notwithstanding it be conceded that in this class of cases a court may exercise a wide discretion. There certainly appears no justification whatever in the return and answer made by the defendants. The application of Inez Hurlbut, filed in court for the custody of the infant, in substance alleged the following facts: That she and plaintiff herein married in Utah in 1917, and the child 4% years of age, was the issue of said marriage; that they after-wards resided in Seattle, state of Washington, in which state they were divorced and the care and custody of the child duly awarded to her; that afterwards, in 1921, during her temporary absence from the state, plaintiff herein, her former husband, obtained an order of court modifying and changing the decree theretofore rendered by awarding the custody of the child to the father, plaintiff in this action, with permission to remove it to Salt Lake City; that the .modification of said decree was fraudulently and falsely obtained by representing to the court that petitioner was not a proper person to have the care and custody of the child. It is also alleged in the petition that petitioner had no opportunity to interpose a defense to said proceeding; that
The return of the judge of said court does not deny the allegations of the complaint, nor does it affirmatively allege any facts which in law would constitute a justification for the order depriving plaintiff of the custody of his child without notice or an opportunity to be heard. The plaintiff had an indubitable right as a first step on his part to challenge the validity of the order by which he was deprived of the custody of his child. It may be, on a hearing regularly and duly had after proper notice, that the court should in its discretion award the custody and control of said child to its mother. That is not a question which concerns us in the instant case. Nevertheless the principle to be vindicated in this proceeding is one of far greater importance in the administration of justice than merely to determine which of two litigants shall have the custody of a minor child. The question goes to the very foundation of judicial proceedings, without which the rights of litigants, cannot be judicially determined. That every person has a" right to his day in court and an opportunity to be heard before he
The right of a party to the custody of a child is just as sacred as the right of property. It is admitted in this ease that the plaintiff had the custody of the child when its mother filed her petition in court. The plaintiff’s right to' such custody must be presumed even without the order of the Washington court. The plaintiff was entitled to retain such custody until deprived thereof by due process of law. By what has been said there is no intention on the part of the court to in any manner impugn the motives and intentions of the honorable judge, defendant in the case. It is manifestly clear that he was inspired by humane motives, believing that it was for the best interests of the child to summarily place it in the custody of its mother. But, however, good his intentions, the court had no power to make the order which is challenged, in this proceeding.
The order of the district court, awarding the temporary custody of the child to Inez Hurlbut, is annulled and set. aside, but without costs to plaintiff.
