| Mo. | Jul 12, 1917
Certiorari to the Kansas City Court of Appeals. The case in the Kansas City Court of Appeals was an original proceeding in habeas corpus to determine the custody of a child, Laura Marie Crockett, and the writ was sued out at the instance of the father of the child, George R. Crockett, the relator in the instant action. The respondents in the habeas corpus proceeding were the grandparents, W. Hall Baker and Laura Baker. The mother of the child died shortly after its birth, and the child was left with the' wife’s parents, above named, by the father. The Kansas City Court of-Appeals appointed a commissioner to take and report the testimony, as well as his conclusions of fact and law. This commissioner took the evidence, and reported the same, together with his conclusion of facts and law to that court. Such commissioner reached the conclusion that the father should have the custody of the child. Exceptions were filed to. his report, and the cause presented to the .Court of Appeals, where by a divided opinion the custody of the child was awarded to the grandparents. From such opinion Ellison, J., dissented, but did not certify the case here. Thereupon application was made for our writ of certiorari on the
I. This is one of those cases that courts regret to have to decide. It is an exceptional one in its class. In many contests over the possession of children there are outstanding facts which appeal at once to the calm judgment of the court, and no feeling of regret is occasioned by the demand for action by the court. But this case is not one of those. Here the child by seven years’ nurture has become entwined in the very lives of the aged grandparents. She is the only child of a much beloved deceased daughter. In her face are the features of that daughter. In their minds and hearts she has in a way taken the place of that daughter. Her residence with them helps dispel the grief felt for the departed one, and their grief seems deep and long-lasting. .
On the other hand she is the idol of her father. His feelings for her seemingly have never waned, although after some years, he chose another to take the place of the mother. In other words, it is a case where sentiment may be so stirred as to warp calm deliberate judgment of the legal questions involved.
The record of evidence as recited by the learned-judge who wrote the majority opinion in the Court of Appeals is a lengthy one, but it casts neither blemish nor blur upon the reputation of either of the contending parties. It gives one a better view of humanity to read this record, as thus written. Many of its interesting details serve no "good purpose in the instant case, because we only have the cold duty to determine the one question, i. e. did the Court of Appeals, upon the facts held in judgment, contravene well established rules of law announced by this court. For this purpose it is not necessary for us to recite all of the minute details of the case as has the learned judge who wrote for the majority in the Court of Appeals. There is much in the
“An analysis^ of the many cases to which we have been cited by counsel serves only to confirm in our judgment the correctness of the ruling of this court in the case of Berenice Scarritt, 76 Mo. 565" court="Mo." date_filed="1882-06-16" href="https://app.midpage.ai/document/in-re-scarritt-8007235?utm_source=webapp" opinion_id="8007235">76 Mo. 565. That a father cannot by contract, other than such as are provided for by statute, confer upon another irrevocably and absolutely as against himself a right to the custody of his minor child; that notwithtanding any such contract, upon habeas corpus for the custody of such child, the custody will be awarded to the father, unless the welfare of the child demands that it sho'uld remain in, or be restored to, the custody of the person with whom it was placed by the father under such contract, or that some other disposition be made of it. Such a contract is not to be entirely ignored. It is to be considered, not for the purpose of fixing the rights of the parties, but for the purpose of shedding light upon their actual relations and feelings toward the infant and assisting the exercise of a wise discretion by the court, as to what disposition should be made of it for the promotion of its own welfare. ’ ’
This ruling leaves to us a review of a quite limited scope of facts, and the ruling of the Court of Appeals thereon in the opinion before us, as to the applicable law, upon such facts, and further whether such ruling contravenes decisions of this court. These facts, their application, and the legal questions we take next.
II. Upon the most vital question of fact in this case, the Court of Appeals says:
“The petitioner resides in Marshall where he is engaged in the real estate business. He is successful in business, belongs to one of the oldest and most highly respected families in the community and is a young man of high character. By his own efforts he has aceumu*425 lated an estate of more than $4,000 and has a yearly income from his business of $2,00(5. There is no question of his ability to support and rear his child in a proper and suitable manner.”
There is also a finding that the child is ‘‘ frail, nervous, imaginative and strongly emotional” and that her love for her grandparents “is of pathetic intensity.” Further that the grandfather on the mother’s side is a man of means (some $50,000 in property) and thereby financially able to look after the child. With these essential facts before us, as held in judgment by the Court of Appeals, does their opinion awarding the child to the grandparents do violence to the rule as announced by this court in the case of In re Berenice Scarritt, 76 Mo. 565" court="Mo." date_filed="1882-06-16" href="https://app.midpage.ai/document/in-re-scarritt-8007235?utm_source=webapp" opinion_id="8007235">76 Mo. 565, and Weir v. Marley, 99 Mo. 484" court="Mo." date_filed="1889-10-15" href="https://app.midpage.ai/document/weir-v-marley-8009700?utm_source=webapp" opinion_id="8009700">99 Mo. 484? Nothing in this record shows the unfitness of the father for the custody of the child. We agree with Ellison, J., when in the dissenting opinion he says:
“The record shows, and it is conceded, that the character of each is the very highest and that the best moral atmosphere, ideals and example would surround the child at the home of either; and the evidence shows, without dispute, that Mr. Crockett’s present wife is’ a refined and an intelligent woman, even tempered, kind and gentle. They have no children and nothing appears to cause a thought that she would not be attentive, watching and loving. The evidence further shows that each of the parties is financially able to provide for the child and properly educate her. Though it does appear from the evidence that the grandfather is a man of much larger means than the father. This, evidently, was brought out to show that it was for the best interest of the child and her welfare that she be given into the custody of her grandparents. It would be stretching the meaning of law intended to be beneficent, to such length as to destroy its character, if we are to say that the best interest of a child lies with the custodian who has the most money. There are some grandparents, or other kinsmen, in this country who could provide extraordinary luxuries for children at enormous cost, and it*426 would be a cruel prospect for an affectionate father who found himself outstripped in such measurement of material benefits.. Manifestly, the legal expression, ‘best interest of the child’ was never intended to penalize a parent for living a simple life, so long as he was an honest and respectable man with disposition and capacity to maintain and educate his child.
“This being the situation and these the circumstances, I am led to ask, What stands in the way of the father? Why should a good, affectionate and capable father be deprived of the custody and care of his child? Certainly not the law of nature, and neither does the law of the land. The truth is, the record shows nothing is in the way save the tender impulse and sentiment of the grandmother for her child who came to an untimely death. So far did she allow this love of the memory of her daughter to control her actions that she treated Mrs. Crockett with little respect and scant politeness. It so far blinded her to Mr. Crockett’s rights, that, though the father, he was not accorded much more privilege and association with his child than if he had been a mere acquaintance. The constant efforts he made and the different disappointments he had in seeing her, together with the slight and trivial excuses offered, made up several sad pages in-the record.
“I think the commissioner’s report should be approved and the proper judgment entered upon it.”
To this may we be permitted to add that it is not always to the best interest of a child to be reared in the lap of wealth and luxury. On the contrary the facing of the stern realties of life in more humble spheres, often times is the thing which brings out and develops .true womanhood and manhood. Nor are we prepared to say that it is always to the interest of a child to have it reared by fond grandparents past the meridian of life. The lives of many girls and boys have been blighted by the unrestrained indulgences of grandparents. But it is not for us to theorize in this case. To us comes alone the cold proposition of law as to whether or not on the recited facts the Court of Appeals has, in
III. Now hearing in mind the facts of the case let us look to the law as heretofore announced by this court. In the case of In the Matter of Berenice S. Scarritt, 76 Mo. l. c. 582, this court said:
“As shown by the pleadings, this is a contest between the father of the infant in- question, on the one side, and its grandparents, on its mother’s side, on the other.
“There is but little, if any, dispute between the parties as to the law generally applicable to such contests. It is conceded that the father is the natural guardian of his child, and as such entitled to the custody of its person. It is also conceded that' in contests of this sort it is the duty of the court to award the person of the infant to the custody of the father, unless it is made manifest to the court that the father, for some reason, is unfit or incompetent to take charge, of it; or unless the welfare of the child itself, for some special or extraordinary reason, demands a different disposition of it, at the hands of the court. Such appears to be the language and current of authorities, to which we have been cited, or to which we have had access. Indeed, this is the admitted law. About this there is no controversy. It is also conceded that the father, by the common law, cannot irrevocably divest himself, even by contract with the mother, or any other person, of the custody of his children. It is held, both in England' and in this country, that an agreement by which the father surrenders the custody of his child, is not binding; and that he is at liberty to revoke his consent afterwards and obtain the child by writ of habeas corpus
In Weir v. Marley, 99 Mo. l. c. 494, we further said:
“In all civilized countries, in which the family is regarded as the unit of social organization, its minor members must and ought to be subject to the custody*428 and control of those who are immediately responsible for their being, for the reason that by nature there has been implanted in the human heart those seeds of parental and filial affection that will assure to the infant care and protection in the years of its helplessness, to be returned to the parents again when they in their turn may need protection, in their years of helplessness and of their child’s strength and maturity. The law, at the birth of an infant, imposes upon the parent the duty of such care and protection, to the performance of which the instincts of nature so readily' prompt, and clothes bim with the right of custody, that he may perform it effectually, upon the presumption that such custody, being in harmony with nature, is best for the interest, not only of the parent and child, but also of society; conceding, however, that the primary object is the interest of the child,- the presumption of the law is that its interest is to be in the custody of its parent.”
The facts held in judgment by the Court of Appeals do not show the father to be an incompetent person to have charge of his child. On the contrary such facts show that he was not only highly competent, but financially able to render all the dues, imposed by nature and by law, from a father to a child. Nor do thé facts found show that “the welfare of the child itself, for some special or extraordinary reason demands a different disposition of it, at the hands of the court.” Without a finding of one of the two things mentioned, under our ruling in Scarritt’s case, supra, the child goes to the father. The fact that the little girl is a “frail, nervous, imaginative and strongly emotional little girl, whose love for her grandparents is of pathetic intensity” is not “some special or extraordinary reason” demanding a different disposition of her. In ope of her tender years (seven years) the breaking of love for her grandparents, however pathetically intense, 'can do no serious injury to the child. In fact to do so, would but give her a chance in a very short time to develop the same character of love for the father, which is the natural status for father and child.
Nor did the Court of Appeals give effect to that presumption which we spoke of in Weir v. Marley, supra. We then said that the presumption was that the best interest of the child was to- be in the custody of the parent^ With such prevailing presumption, a showing against the parent must be made, or that there was some special and extraordinary reason why such custody should not be in the father.
In our judgment the opinion of the Court of Appeals in this case, upon the facts held in judgment by such court, contravenes both of 'our opinions, supra. For that reason their judgment and opinion should be quashed and it is so ordered.