208 S.W.2d 318 | Ky. Ct. App. | 1948
Affirming.
Upon petition for writ of habeas corpus against Lillian McGary and her husband, Robert McGary, appellants, the Children's Agency, a charitable organization of Louisville, appellee, obtained judgment for custody of Robert A. Bell, a 3 year old child. The McGarys appeal.
It is contended that the judgment should be reversed because (A) the chancellor did not hear or consider appellants' evidence pertaining to the welfare of this child and therefore did not render judgment on the basis of the child's best interest and because (B) appellee is estopped from claiming any right of custody of this child under the existing circumstances of this case.
In the early part of 1945, Mrs. Lorraine Bell, being separated from her lawful husband and being enceinte with another man's child, turned to The Children's Agency for help in her hour of extremity. The Agency gave her a hand, placed her in a hospital until the birth, on February 27, 1945, of Robert D. Bell, our child in question, then took her and the baby to the McGary home on March 7, 1945, where the child has since remained under a boarding arrangement of contractual basis. The Agency has paid the McGarys a total of $928.34 for board and clothes furnished to this child. The mother remained very briefly at the McGary home with the baby, then left without the baby, finally went to Texas, where she, now divorced from her husband, lives at the present time. On September 20, 1947, having made plans for a permanent adoption in another home, The Agency sought to repossess the child. But the McGarys, then having discovered the child to be enshrined *431 with the affections of their own hearts, refused to give it up. On September 29, 1947, these habeas corpus proceedings were begun by The Agency. On September 30, 1947, the McGarys filed a petition for legal adoption and in support filed a duly executed consent of the mother. But on October 4, 1947, the mother revoked her adoption consent of September 30, 1947, and reinvested The Agency with full authority to make its own decision as to permanent placement of the child.
A. It is true, just as appellants contend, that a child custody case presents as its paramount issue the child's best interest and that such an issue should ordinarily transcend the purely legal aspects of any case. See Thomas v. Sprinkle,
B. Appellants also take the position that by reason of appellee's conduct in leading appellants to believe that the child might be left in the McGary home for permanent adoption, The Agency is now estopped from claiming custody. But it must be remembered that in estoppel it is necessary to establish that the one to be estopped, The Agency in this case, has so misled the ones contending for the estoppel, the McGarys in this case, as to induce the latter to do something to their prejudice. Hodge Tobacco Co. v. Sexton,
While it is no doubt hard for the McGarys to have to face permanent separation from this little child, yet it appears necessary for them to do so, and we think they might do well to adopt the philosophical attitude that "it is better to have loved and lost than never to have loved at all." If we had another bambino, we would give it to them. Perhaps The Agency may feel likewise and in so doing may hereafter find the very one to meet their hearts' desire.
Wherefore, seeing no error in the chancellor's judgment, the same is hereby affirmed.