Carter v. Cade
| Decision Date | 09 February 1951 |
| Docket Number | No. 15230,15230 |
| Parties | CARTER v. CADE et ux. |
| Court | Texas Court of Appeals |
Irwin & Irwin and Robert C. Benavides, all of Dallas, for appellant.
Bonney, Paxton & Wade, of Dallas, for appellees.
The appellant, Mrs. Gertrude Carter, a widow, petitioned the Dallas court for a writ of habeas corpus alleging that the appellees, Mr. and Mrs. James Cade, of Rockwall County, Texas, were illegally restraining and keeping custody of her minor child, a boy four years of age. The proceedings were removed to Rockwall County on a plea of privilege and upon trial the petition was denied and the custody of the child awarded to appellees. No statement of facts is brought up in the record but the court made certain findings of fact, which are substantially as follows:
Mrs. Carter is the mother of the child, a boy now four and one-half years of age. Noel Carter, the father of the child and husband of appellant, in 1946 contracted tuberculosis, which resulted in his death in 1947. To protect the infant child from the danger of contracting tuberculosis, a verbal arrangement was made by appellant and appellees, the latter being cousins of the said Noel Carter, to the effect that appellees would care for this child until such time as Carter regained his health or until appellant was able to care for her child. After the death of the father, the mother made demand for the return of her child but on the insistence of appellees left the child in their care until such time as she could secure a position and a place for herself and the child. A short time prior to the month of October, 1949, when application was made for a writ of habeas corpus, appellant made oral demand on the appellees for the return of the child and respondents refused to give up possession of him. When the last demand was made by appellant and at the time of the trial, she was employed by a reputable insurance company at a salary of $185.00 per month, and was then living in a reputable and respectable residential neighborhood of Dallas, occupying an apartment with a family of good moral character and reputation. The appellant, as well as the appellees, were found to be proper and fit persons to have the care, custody and control of the child. During the time the child was in the possession of the appellees, the appellant, Mrs. Carter, had furnished to them money and clothing for the child and made periodic visits to see him. The appellees, Mr. and Mrs. Cade, held the child by virtue of a verbal agreement with the appellant, without any time having been fixed for his return, and which agreement would terminate at the will of the parties or when petitioner requested the return of the child. The court in conclusion found, 'that due to the length of time that minor child has been in the possession of the respondents and from a financial and educational standpoint, it would be for the best interest of said minor child to remain in the possession of the respondents.'
Necessarily the trial judge is allowed wide latitude and broad discretion in determining custodial rights to children. But in this case we believe he exceeded the limits of his discretionary powers and under the facts found by him should have awarded the custody to the appellant. It seems to be well settled in Texas that when a parent is found to be a fit and suitable person to have the care and custody of his own child, it should be awarded to him, unless he has abandoned the child or definitely relinquished his responsibility and obligation as a parent and conferred those privileges and duties on others. Though the parent has permanently relinquished custody of the child, he may even regain the custody provided it is found to be for the best interest of the child. In the instant case there was no relinquishment except one of a temporary nature, which, according to the facts found by the court, was thoroughly understood and agreed to by all parties. In the case of State ex rel. Wood v. Deaton, 93 Tex. 243, 54 S.W. 901, 903, the Supreme Court reversed a judgment of a lower court and directed that the child be delivered to its mother, quoting with approval from the case of State ex rel. Herrick v. Richardson, 40 N.H. 272, 275, as follows: "The discretion to be exercised is not an arbitrary one, but, in the absence of any positive disqualification of the father for the proper discharge of his parental duties, he has, as it seems to us, a paramount right to the custody of his infant child, which no court is at liberty to...
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