171 S.W.2d 217 | Tex. App. | 1943
This is an appeal from the judgment of the District Court in a habeas corpus proceeding instituted by Rubye L. Secrest, joined by her present husban-d, Stuart T. Secrest, against Mr. and Mrs. Jesse Lewis, to recover control and custody of Cyrtis Wayne Gibson, the two-year-old son of Mrs. Secrest and her former husband.
The trial was before the court without the intervention of a jury and resulted in judgment awarding the control and custody of the child to the Lewises, from which judgment the Secrests have prosecuted this appeal.
The facts are briefly as follows:
Mrs. Secrest was formerly married to Hoot Gibson, who is the father of her two children. The oldest child is about five years old and live.s with his grandmother, Mrs. Cummings. The child involved here will be three years of age on September 30, 1943, and lives with Jesse Lewis and his wife, Melba Lewis. Mrs. Secrest was
The trial judge found that she was not morally unfit to have the custody of her child but he further found that the best interest of the child would require that it be left in the home of the Lewises.
The matter of determining the custody of a child is largely addressed to the discretion of the trial judge. We are unable to say here that the trial judge erred in allowing the Lewises to retain custody of this child.
The fact that the mother had voluntarily given her child to the Lewises, that her present husband does not welcome the child to their home, that the mother and her present husband are having a rather unsettled married life, that the mother intends to give the custody to another, her mother, and the further fact that the Lewises have nursed the child from infancy and their home is the only home the child has known, and that the government allotment for the support of the child may have at least in part prompted her to demand custody of the child, all taken together support the action of the trial judge in permitting the child to remain in the home where the mother- had placed it and in the custody of the foster parents to whom the mother had given the child.
Appellants contend that the judgment in the divorce case in Uvalde County between Mrs. Secrest and her former husband having awarded to her the custody of this child, such judgment was res ad-judicata of the question up to that date and that such custody could only be changed by showing changed conditions since the date of the judgment. We overrule this contention. The Lewises are strangers to the divorce decree at Uvalde. Prior to this divorce Mrs. Secrest had given this child to the Lewises. They had no chance to appear and be heard in the proceedings at Uvalde. The child was in the home of the Lewises in San Antonio and neither party to the suit had the custody or control of the child at the time the judgment was entered. Under such circumstances the judgment was not binding on the Lewises and they were entitled in this suit to show all the facts relating to their custody of the child, including facts which antedated the divorce decree.
The fact that the mother is the natural guardian of her child does not give her an absolute right to recover its custody and care from one to whom she has given her child. Under such circumstances the best interest and welfare of the child is the paramount issue. The fact that the child
The judgment of the trial court is affirmed.