Adair v. Clure
| Decision Date | 23 June 1934 |
| Docket Number | 42429 |
| Citation | 255 N.W. 658,218 Iowa 482 |
| Parties | ROGER ADAIR, Appellant, v. JOE CLURE, Appellee |
| Court | Iowa Supreme Court |
Appeal from Cass District Court.--H. J. MANTZ, Judge.
This is an action in habeas corpus commenced by the parents of Roger Adair, a minor, against the defendant to determine the proper custody of their child. The lower court denied the petition and awarded the custody of the child to the defendant. From this ruling, plaintiff appeals.--Reversed.
Reversed and remanded.
White & White, for appellant.
Boorman & Whitmore, for appellee.
A child was born to Mr. and Mrs. Adair in a hospital in Atlantic Iowa, on February 20, 1931. Prior to that time the parents lived on a farm about twenty miles from Atlantic. After the birth, the mother remained in the hospital ten days. Mr. Adair's mother lived in Atlantic with the defendant, Joe Clure, who was then her fourth husband. On leaving the hospital, Mrs. Adair and the baby went to Mrs. Clure's home for three or four days. Then she and the baby returned to their home on the farm. Shortly thereafter the baby took sick and they consulted a doctor in Atlantic. The baby's condition was so bad that frequent medical attention was necessary. While the baby was sick, Mrs. Clure called at the Adair home. The doctor in Atlantic had complained about making twenty-mile trips into the country to visit the child, and at Mrs. Clure's suggestion she took the baby to her home in Atlantic. There is some evidence that the baby arrived at the Clure home in a dirty condition and without sufficient clothing, but the trip to Atlantic from the farm was twenty miles; the baby had been suffering from diarrhea and fever, and when it arrived there its clothing was soiled and dirty, and its body sore. A complete set of clean baby clothes had been made by its mother's sister and these were sent with the baby. When the baby left home, the mother was too ill to go along.
The child remained ill at the Clure home for several months. During that time the parents frequently called to see him. Thereafter the parents were compelled to give up the farm. Thereupon the mother went to live with her parents temporarily and the father with Mrs. Clure, his mother. In about three months thereafter the parents moved into a small home in Atlantic. The child was allowed to remain at the grandmother's home until her death on June 20, 1933. During those two years, there had been no dispute or difficulty about the custody of the child. The parents often called at the Clure home, and at frequent intervals the child was with them. On account of the financial depression Mr. Adair did not have steady employment and the child was allowed to remain at his grandmother's home until her death. Thereafter the parents attempted to regain the full custody of the child, and took him to their home. The defendant, Clure, called at their home for the child, and with the assistance of two others, forcibly took him from the parents. At that time, the father actually fought with Clure to retain possession of his child, but the defendant succeeded in getting it away.
While the child was in the Clure's custody, most of his expenses were paid by Clure. Mrs. Adair, however, and two of her sisters furnished considerable clothing for the child, and Mr. Adair paid his mother some money at different times to help pay expenses.
Some evidence tends to show that some time after the child came into the Clure home, one of the parents had agreed to give Mrs. Clure his permanent custody. This was denied by both parents, and there is no evidence to show that such an agreement was made with both parents. The lower court did not determine whether or not such agreement was entered into. It is our conclusion that none was entered into by either parent.
The lower court awarded the custody of the child to the defendant, Joe Clure, but such ruling was not based upon any agreement. The ruling was based upon the following finding of facts: (1) That the parents have no financial means, and that the father has had no steady employment for a long time; (2) that the child has been out of the custody of the mother and father since it was about two weeks old; (3) that the parents occupy two rooms in a five-room house; (4) that the parents were at one time separated for about three months; (5) that the parents were indifferent in some degree toward the welfare of the child since it was taken into the Clure home; (6) that the defendant is a man of good habits and character, is gainfully employed, and owns a home; is attached to the child, has paid for his care, and is capable of caring for the child in the future.
This action was commenced in July, 1933, when the child was less than two and a half years old. The question raised is whether or not, under the facts as hereinabove disclosed, the parents are entitled to the custody and control of their own child, as against the defendant, who is of no blood relationship whatever.
I. Defendant contends that this is a law action and that the findings of facts by the trial court are final. This is the general rule, but it has been modified in habeas corpus proceedings, where the custody of a minor child is involved. It is now the settled rule in this state that where the issue turns upon the best welfare of the child the principles of equity should be applied. Barnett v. Blakley, 202 Iowa 1, 209 N.W. 412; Jensen v. Sorenson, 211 Iowa 354, 233 N.W. 717. In Jensen v. Sorenson, supra, loc. cit. 367, in an opinion written by Justice Evans, we said:
In a determination of this case, therefore, the consideration of the evidence is indispensable.
II. In determining this case, we must remember that our statutes make the parents the natural guardians of the persons of their children, and give them their custody and control. Section 12573 of the Code provides as follows: "Parents are the natural guardians of the persons of their minor children, and equally entitled to their care and custody." Most of the cases heretofore decided involved a dispute between the parents themselves, or between other relatives. There is no dispute in this action between the parents. Both are asking for and are anxious to have the custody and control of their only child. The paternal grandmother of the child is now dead, and her widower is asking for such custody for himself. Notwithstanding our statutory provisions, we have held that, in a determination of an action of this kind, the court will be governed by the best interests of the child. Barry v. Reeves, 203 Iowa 1345, 214 N.W. 519; Sandine v. Johnson, 188 Iowa 620, 176 N.W. 638; Bonnarens v. Klett, 213 Iowa 1286, 241 N.W. 483; Drumb v. Keen, 47 Iowa 435; Miller v. Miller, 123 Iowa 165, 98 N.W. 631.
"The legal right of the parents, however, should never be lost sight of as an influential factor, and the court should always give the custody to them, unless they so conduct themselves or the conditions are such, as to render it essential to the safety and welfare of the child in some serious and important respect, either physically, intellectually, or morally, that it should be removed from their custody." 46 C. J. 1239; Stearns v. Andre, 239 Mich. 414, 214 N.W. 421; Smith v. Moore (Tex. Civ. App.) 171 S.W. 822, loc. cit. 825.
"A parent who is of good character and a proper person to have the custody of the child and is reasonably able to provide for it ordinarily is entitled to the custody as against other persons, and this rule applies although such others are much attached to the child, and the child is attached to them." 46 C. J. 1228; Winter v. Winter, 184 Iowa 85, 166 N.W. 274; Risting v. Sparboe, 179 Iowa 1133, 162 N.W. 592, L. R. A. 1917E, 318; In re Smith, 158 N.W. 578; Brem v. Swander, 153 Iowa 669, 132 N.W. 829; Smidt v. Benenga, 140 Iowa 399, 118 N.W. 439; Van Auken v. Wieman, 128 Iowa 476, 104 N.W. 464; Dunkin v. Seifert, 123 Iowa 64, 98 N.W. 558; Shaw v. Nachtwey, 43 Iowa 653.
It is the general rule of law in this and other states that there is no ground upon which the courts can interfere with the rights of the parents except that of imperative necessity. The facts in this case show that the parents have a home of their own, that the plaintiff's father who is also a man of means and gainfully employed, has agreed to assist...
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