123 Kan. 513 | Kan. | 1927
The opinion of the court was delivered by
This is a habeas corpus proceeding for the custody of a minor child. The court below, after a full hearing, made exhaustive findings of fact, also conclusions of law, and rendered judgment in favor of the father, who was an intervener in the case.
The material facts are substantially as follows; The child, Gean Gordon Melroy, was born November 10, 1920. His mother was killed in an automobile casualty May 21, 1922. Soon thereafter his father, Hugh E. Melroy, took the child to the home of his mother, Mrs. M. E. Melroy. About that time he had a talk with the respondent, who is the child’s maternal grandmother, in which he expressed the faith that respondent could make a home for the child and the doubt whether his mother, Mrs. M. E. Melroy, was situated to take proper care of the child. Notwithstanding these expressions he
The legal questions involved are not many nor difficult. The child’s father, never having legally surrendered his right to the custody of the child, by consenting to its adoption or otherwise, is entitled to the custody of his own child. This is so well settled in the law that no authorities are needed to support it. An effort was made to show that the father was not a suitable person to rear the child, but the trial court found against respondent on that issue, and upon all other controverted questions of fact. These findings are supported by the evidence and they are binding on this court.
The order of the probate court appointing respondent guardian of the person of the child, without the consent of the child’s father, and where no issue concerning the father’s fitness was presented or determined in the proceedings in which such appointment was made, is not binding on the father. (In re Brown, 98 Kan. 663,159 Pac. 405.)
The judgment of the court below is affirmed.