Daley v. Gunville, 10538

• Decision Date: 24 April 1984
• Docket Number: No. 10538,10538
• Citation: 348 N.W.2d 441
• Parties: Julia DALEY, Plaintiff and Appellee, v. Emma L. GUNVILLE, Defendant and Appellant. Civ.
• Court: North Dakota Supreme Court

Page 441

348 N.W.2d 441

Julia DALEY, Plaintiff and Appellee, v. Emma L. GUNVILLE, Defendant and Appellant.

Civ. No. 10538.

Supreme Court of North Dakota.

April 24, 1984.

Richard L. Burns, Legal Assistance of North Dakota, Inc., Devils Lake, for defendant and appellant.

John R. Gregg, Bottineau, for plaintiff and appellee.

GIERKE, Justice.

In this case Julia Daley [Julia] petitioned the District Court of Rolette County for the issuance of a writ of habeas corpus, pursuant to Chapter 32-22 of the North Dakota Century Code. Julia alleged that her daughter, Kathryn Louise Maddox [Katie], was being wrongfully detained in the custody and control of the child's maternal grandmother, Emma L. Gunville [Emma]. A writ of habeas corpus was issued by the district court. The writ came on for hearing on November 19, 1982, at which time it was stipulated that Emma would retain custody of Katie until the end of the school year and Julia would have visitation with Katie at Lewistown, Montana, over the Christmas vacation period. At the end of the school year, Julia was to receive permanent custody of Katie "unless Social Services' home studies indicate that it is not in the best interests and welfare of Kathryn L. Maddox to remain in the Daley home". The court, however, did not dismiss the proceedings, but, rather, continued them and authorized a hearing on the merits on twenty days' notice to the opposing party. Pursuant to the stipulation, evaluations were ordered to be prepared and submitted by Social Services, assessing the living situation, family and medical background, and resources of the parties. The court also ordered that Katie be referred for professional evaluation. Reports were received from the Fergus County, Montana, Department of Public Welfare; the Lake Region Human Service Center, Devils Lake, North Dakota; and evaluations were received from psychologists Dr. Jeffrey R. McKee and Dr. Olov Gardebring. Unsatisfied that a change in custody would be in Katie's best interests, Emma requested a trial on the merits. The trial was held on July 25, 1983. The district court then issued its memorandum opinion and order granting the writ of habeas corpus and awarding custody of Katie to her natural mother, Julia. From that order Emma appeals. The district court's order has been stayed pending this appeal.

Katie was born to Julia on October 4, 1977. She was the second child born out of wedlock to Julia. The first child was Dale, born January 11, 1975. Katie's natural father is in no way connected with these proceedings.

While Julia was living in Montana she experienced a great deal of stress while pursuing certain educational programs and dealing with two children. Rather than place Katie in a foster home, Julia made arrangements to place Katie, then six months old, with Katie's grandmother, Emma Gunville. Katie has resided with the Gunvilles at Dunseith since that time.

On August 21, 1979, Julia married Terry Daley. A son, Gary, was born May 15, 1983. The family, consisting of Julia, Terry, Dale, and Gary, presently resides in Lewistown, Montana. Both Julia and Terry are employed.

Emma Gunville is 54 years of age. For the past 21 years, except for two intervals, Emma has lived with Robert Gunville. They are not married. Four children have been born to Robert and Emma: Sylvia, Toni, James, and Lloyd. The family resides in a home north of Dunseith. Currently living in the home, in addition to Robert, Emma, and Katie, are: Lloyd, age 16; Toni, age 18; Carl Maddox, age 23 (Emma's son by a previous marriage); and Toni's fiance, Danny. Robert Gunville is employed as a resident care technician at the San Haven State Hospital. Emma is also employed at the San Haven State Hospital.

In 1969, Robert and Emma separated for a period of two or three months. During the separation, Robert married another woman in Montana. It appears that divorce proceedings were commenced regarding this marriage, but it is not clear if the divorce was ever finalized. Robert and Emma also separated in 1981 for approximately one year, during which time Robert visited the home almost every day.

Emma, as stated, is 54 years old. She suffers from a degenerative hip condition and has high blood pressure. Both conditions are controlled with medication. She is, nevertheless, an active woman whose "ailments" have little discernible effect on her activities. Emma testified that her hip would require surgery sometime in the future.

During the five-and-one-half-year period between April 1978, when Katie came to live with Emma, and the initiation of these proceedings in November 1982, Julia visited her daughter a total of three times. Only one of these visits was initiated by Julia and that visit was motivated, at least in part, by a desire to leave her other child, Dale, with Emma while Julia searched for a job. This visit occurred around the beginning of January 1979. Julia stayed in Dunseith for approximately two weeks before returning to Montana. Dale remained with Emma for approximately one month before returning to Montana with Julia's grandmother who also lives in Lewistown. Katie remained with Emma.

The next visit was in February or March of 1980. On that occasion Emma and Katie traveled to Lewistown, Montana, to visit Emma's son, who had been injured in a motor vehicle accident. Julia visited Katie at that time in the home of Katie's great-grandmother. Following this brief visit, Emma and Katie returned to Dunseith.

The third visit occurred during the summer of 1982. It was Julia's testimony that Emma had suggested this visitation because she did not want to keep Katie from her mother. She suggested a summer visitation in Lewistown and further suggested that a decision regarding whether or not Katie would live permanently with Julia would be made at the end of the summer. Emma testified that Katie was to be returned in mid-August. Katie was not returned at that time. Because of the prolonged visitation and because of certain alleged incidents in the Daley home which she had heard about, Emma went to Lewistown and enlisted the aid of the sheriff, who removed Katie from Julia's custody. ¹ Emma and Katie then returned to Dunseith. These habeas corpus proceedings were commenced shortly thereafter.

During that same five-and-one-half-year period, Katie received no letters from her mother, only three or four cards, and three or four gifts. Julia provided one dress for Katie during that period. The Gunvilles have provided all support. There has been some phone contact between Julia and Katie. The frequency of the calls as well as who originated them is disputed. Julia testified, however, that she telephoned her mother "once every three months at least, at least". Additionally, Katie recognizes to some extent that Julia is her natural mother.

In Mansukhani v. Pailing, 318 N.W.2d 748, 750 (N.D.1982), this court recognized that:

"... [P]arents have a right to the custody and companionship of their children superior to that of any other person and that, although such right is not absolute, the courts are reluctant to remove a child from the parent's custody unless it is necessary to prevent serious detriment to the welfare of the child."

In Mansukhani, supra 318 N.W.2d at 754, we approved the following language from Painter v. Bannister, 258 Iowa 1390, 140 N.W.2d 152, 156, cert. den., 385 U.S. 949, 87 S.Ct. 317, 17 L.Ed.2d 227 (1966):

"There is no merit in the Bannister claim that Mr. Painter permanently relinquished custody. It was intended to be a temporary arrangement. A father should be encouraged to look for help with the children, from those who love them without the risk of thereby losing the custody of the children permanently. This fact must receive consideration in cases of this kind. However, as always, the primary consideration is the best interest of the child and if the return of custody to the father is likely to have a seriously disrupting and disturbing effect upon the child's development, this fact must prevail."

In the case of In re Buchholz, 326 N.W.2d 203, 207 (N.D.1982), we stated that:

"When there is a custody dispute between a natural parent and a third party ..., the test is whether or not there are exceptional circumstances which require that, in the best interests of the child, the child be placed in the custody of the third party rather than with his or her biological parent. Mansukhani v. Pailing, 318 N.W.2d 748, 751 (N.D.1982)....

"Exceptional circumstances exist when the custody dispute pits the psychological parent against the natural parent. In Interest of D.R.J., 317 N.W.2d 391, 394 (N.D.1982)."

Dr. Gardebring testified in his deposition that the Gunvilles were Katie's psychological parents. Dr. Gardebring also testified that Katie had initially formed an attachment to Julia, but that the first change in custody from Julia to the Gunvilles was a severe disruption; that a second change would compound the disruption; that there is a bonding between Katie and the Gunvilles; and that it would be in Katie's best interest to remain with them. According to Dr. Gardebring, when he asked Katie where she wanted to live, she responded that "She wished that all four of them would be together, but not separately". The doctor interpreted this response as a fear of going to Montana rather than a demonstration of bonding between Katie and her mother--a conclusion which he stated is further supported by Katie's request that his notes be taken in French rather than in English. ²

The district court did not fully accept Dr. Gardebring's conclusions for a number of reasons. The court noted that:

"... Dr. Gardebring met with the Gunvilles and Katie, but not with Julie [sic ], and that meeting at most lasted two hours, 50 minutes of which were with Katie alone and 40 minutes with Katie and the Gunvilles. It is difficult to term this an in-depth consultation ..."

The court also pointed out that Doctor Gardebring was unaware...