102 So. 2d 181 | Miss. | 1958
This is a habeas corpus proceeding involving the custody of two minor children, Oscar Gladney, a minor 13 years of age, and Claudia Gladney, a minor 12 years of age. The petition for a writ of habeas corpus was filed on July 5,1957, by Alice Gladney, the paternal grandmother of the two children, against Arletha J. Hopkins, the maternal grand mother of the two children. The record shows that the mother of the two children is Mattie Mae Gladney Miles. The father of the two children is Oscar Gladney, Sr., who resides in Los Angeles, California.
The petitioner alleged in her petition that Oscar Gladney, Sr., and Mattie Mae Gladney Miles separated when the children were two and three years of age, respectively; that the children were placed in the custody of the petitioner on July 1, 1947, and that the petitioner had retained the custody of the two children and had borne the entire expense of rearing them up to the time of the filing of the petition. The petitioner further alleged in her petition that on or about April 1,1957, the respondent, Arletha J. Hopkins, the maternal grandmother, came to the petitioner’s home in the City of Hattiesburg, and took
In her answer to the petition, the respondent, Arletha J. Hopkins, admitted that the children had been placed in the care and custody of the petitioner, Alice Gladney, after the separation of their parents, but denied that she had had the complete care and custody of the children for the past ten years. The respondent admitted that approximately three months before the date of the filing of the petition she had brought the children from Hattiesburg to Gulfport. She averred in her answer, however, that she had picked up the children for the purpose of delivering them to her daughter, who was the mother of the children, and who was entitled to the custody of the children, and that she had delivered the children to their mother and no longer had them in her custody.
The cause was heard by the County Judge on July 10, 1957, and after hearing the testimony the County Judge found that the physical possession and custody of the two minor children at the time of the hearing was in their mother, Mattie Mae Miles Dixon, and that the mother was entitled to the custody of the children to the exclusion of Alice Gladney, the paternal grandmother, and that the prayer of the petition should be denied.
From the order denying the relief prayed for the petitioner has prosecuted this appeal.
The appellant’s attorney argues only one point as ground for reversal of the judgment of the lower court, and that is, that the court erred in denying the relief sought by the petitioner in the habeas corpus proceeding.
The testimony of the witnesses is substantially as follows :
Alice Gladney testified that she lived in Hattiesburg, but worked in Chicago; that she had had the possession
Claudia Gladney testified that she was 12 years old and in the sixth grade. She called Alice Gladney “Big Mamma.” She had lived with her as long as she could remember. She stated she wanted to go back to Big Mamma, and that her little brother wanted to go back. Big Mamma kept them in school, gave them plenty to eat, nice clothes, saw that they bathed regularly. Her other grandmother never sent them anything. Big Mamma sent them to church. On cross-examination Claudia stated that she was in the sixth grade because grandmother had taken her back and forth to Chicago. Claudia stated that her mother and her grandmother Hopkins had been good to her, and that she loved her grandmother Hopkins. Oscar Gladney testified that he was 13 years old and in the sixth grade; that he had been in Gulfport about three mouths. He had lived with Big Mamma as long as he could remember. He wanted to go back with Big Mamma. His sister felt the same way. He said his grandmother Hopkins had been good to him since he had been down to Gulfport. Reverend R. W. Willard testified that he was an ordained minister of the Baptist Church at Hattiesburg ; that he had known Alice Gladney 30 or 35 years; and that she was a very good woman and had made a good mother for the children. He knew nothing about the atmosphere of the children in Chicago.
Arletha J. Hopkins testified that she was the mother of Mattie Mae Dixon, the mother of the two children, and that she lived in Gulfport and owned her own home,
Mattie Mae Dixon testified that she was the mother of the two children, and that she had been married four times. She and her last husband, Henry Dixon, had been divorced six years. When she and Oscar Gladney separated she brought the children home to her mother. Alice came and begged her to let her keep the children for a while; Alice did not want her to give them to her; she was not trying to take them away from her. Mattie Mae stated that the children came to visit her while she lived in Hattiesburg; that she stayed there with Alice and her husband from 1953 until 1955, and Alice was in Chicago part of that time. She was asked whether Alice sent her any money. Her answer was, “No, she sent money to her husband and he bought when he felt like it.” Mattie
We think the- trial judge erred in denying the prayer of the petitioner and in dismissing the petition. This was not a contest between the paternal grandmother and the mother of the two children. The petition alleged, and the proof shows that the physical possession and custody of the two children was in the respondent, Arletha J. Hopkins, at the time the petition was filed on July 5, 1957, and on the date the writ was issued. Mattie Mae Dixon, the mother of the children, was living in Hattiesburg at that time, and did not have the custody of the children; and the fact that Mattie Mae came to Gulport for the hearing and testified as a witness for the respondent, and that she expected to move back to Gulfport after the hearing and live with her mother, did not make her a party .to the suit or deprive the petitioner of her right to have the issue presented by her petition determined on its merits.
The testimony in the record clearly shows that, as between the two grandmothers, the appellant was entitled to a judgment awarding to her the custody of the two children. Alice testified, and Arletha and Mattie Mae both admitted, that Alice had had the care and custody of the two children for a period of approximately ten years; and that neither Arletha nor Mattie Mae had con
In a contest of this ldnd the welfare of the child or children is a matter of chief importance; and where the child is sufficiently mature in mind to form a judgment, the wishes of the child may well be the controlling factor. 39 C. J. S., p. 575, Habeas Corpus, par. 41; Forbes v. Warren, 184 Miss. 526, 186 So. 325; Governale v. Haley, (Miss. 1956), 87 So. 2d 686. The question as to the right of the mother to regain possession of the children or to have the custody awarded to her is not before us for consideration on this appeal. Her rights, if any, must be determined in a proper proceeding to which she is a party.
For the reasons stated above the judgment of the county court is reversed, and judgment will be entered here awarding the custody and the right of possession of the two children to the appellant, but without prejudice to the right of the mother of the two children to have her claim to the custody of the two children determined in a proper proceeding instituted by her for that purpose, if she wishes to institute such proceeding.
Reversed and judgment rendered for apellant.