Duckworth v. Duckworth

• Decision Date: 23 February 1932
• Docket Number: 25,977
• Citation: 179 N.E. 773,203 Ind. 276
• Parties: Duckworth v. Duckworth et al
• Court: Indiana Supreme Court

179 N.E. 773

203 Ind. 276

Duckworth v. Duckworth et al

No. 25,977

Supreme Court of Indiana

February 23, 1932

1. PARENT AND CHILD---Custody of Minor Child---Interests Involved---Controlling Element.---In determining custody of a minor child, interest (1) of child, (2) of parents, and (3) of the state should be considered, but the welfare and best interests of the child is the paramount consideration. p 281.

2. PARENT AND CHILD---Custody of Minor Child---Parent's Right Thereto---Dependent on Child's Welfare.---Parents have a natural right to the custody of their children, the father first, then the mother, if suitable persons, but either or both may be deprived thereof if the welfare of the children require it. p. 281.

3. PARENT AND CHILD---Custody of Minor Child---Parent's Right Thereto---Exception.---Parent of good moral character and able to provide for child is entitled to its custody as against those better able to care for child or to whom it is attached, but such right is not absolute and may be taken away when strong necessity is shown, such as unfitness or incompetence to care for child for its best permanent interest. pp. 282, 284.

4. PARENT AND CHILD---Custody of Minor Child---Child's Welfare Paramount---Elements to be Considered.---In awarding the custody of a minor child, the child's welfare requires attention to its sex, age, health, social position expectancy of property, morals, education, and discipline. p 284.

5. PARENT AND CHILD---Parent's Right to Custody of Child---Effect of Past Conduct, Conditions and Circumstances.---Ordinarily, a parent who is a suitable person to have the custody of his child at the time the question arises should not be refused such custody because of past conduct, habits, health or circumstances which then would have rendered such parent an improper custodian. p 285.

6. PARENT AND CHILD---Parent's Right to Custody of Child---Burden of Proof as to Fitness---After Unfitness Judicially Determined.---In an action for the custody of his child, a parent, who has been judicially determined unfit therefor, has the burden of proving a change of conditions and his present fitness and that the best interests of the child will be served. p. 285.

7. DIVORCE---Court's Duty as to Children---Continues After Divorce Granted.---A court which grants a divorce has the continuing duty, upon proper petition, to see that a minor child is properly cared for, such child being, in a sense, a ward of the court. p. 285.

8. PARENT AND CHILD---Custody of Child---Child's Preference---When Will be Considered.---The preference of a child as to its custodian will not prevail over a legal right to its custody, but preference of a child of the age of discretion may be considered on the question of the child's welfare, and in connection with other circumstances that may outweigh legal right. p. 286.

9. PARENT AND CHILD---Custody of Child in Habeas Corpus Proceeding---Fitness of Plaintiff---Question for Trial Court.---In a habeas corpus proceeding by a father for the custody of his minor son, after the death of the mother to whom the custody of the son was awarded in her divorce action against the father, the question of the father's reformation and the paramount question of the welfare of the child rested in the sound judicial discretion of the trial court rather than on any hard and fast rules of law. p. 287.

10. HABEAS CORPUS---For Custody of Minor Child---Question on Appeal---Limited to Determination of Abuse of Discretion.---The review on appeal of the decision of the trial court in a father's habeas corpus proceeding for the custody of his minor child is limited to a determination of whether there was an abuse of the court's discretion in denying the application. p. 287.

11. HABEAS CORPUS---By Father for Custody of his Son---Decision for Defendants---Held No Abuse of Discretion.---In a habeas corpus proceeding by a father for custody of his minor son, after death of the mother, to whom custody of the son was awarded in her divorce action against the father, it was held that no abuse of discretion was shown in leaving the boy with defendants, his uncle and aunt. p. 287.

12. HABEAS CORPUS---By Father for Custody of Son---Judgment for Defendants---No Provision for Plaintiff Visiting his Son---Motion to Modify Judgment Proper Practice.---In a habeas corpus proceeding by a father for the custody of his 12-year-old son, a judgment continuing the custody in the defendants, plaintiff's brother and wife, was not erroneous although no provision was made for plaintiff to visit his son; if plaintiff desired an order on that matter, he should have moved to modify the judgment. p. 288.

From Morgan Circuit Court; Joseph W. Williams, Judge.

Habeas corpus proceeding by Richard Duckworth for the custody of his 12-year-old son against William Duckworth and wife. From a judgment in favor of defendants, the plaintiff appealed.

Affirmed.

G. W. Butler, for appellant.

Omar O'Harrow and Kivett & Kivett, for appellees.

Martin J. Travis, C. J., absent.

OPINION

Martin, J.

This action in habeas corpus, for the custody of his minor son, Otis, was brought by Richard Duckworth against William A. Duckworth, his brother, and Lois, his brother's wife.

The defendants filed a return to the writ denying that they illegally restrained Otis, and stating that they were ready and willing to abide any order of the court with reference to the child and asking to be discharged. Otis appeared by next friend and filed an intervening petition asking that he be placed in the custody of the defendants, his uncle and aunt.

The court overruled the plaintiff's motion to strike out the intervening petition, and, upon the filing of answers in general denial to the return and to the intervening petition, tried the cause and found in favor of the defendants. Richard Duckworth appeals, and assigns as error the overruling of his motion for a new trial, wherein it is alleged that the finding is not sustained by sufficient evidence and is contrary to law.

The evidence shows the following facts: Richard Duckworth is a street car conductor, 45 years of age, and lives in the northwest part of the city of Indianapolis with his second wife and two children, a boy 15 and a girl 10 years of age. These two children, as well as Otis, age 12, and another son 17 years of age, were born to his former marriage. That marriage was terminated by a divorce action in 1924, which Richard did not contest. The mother of the children was given their custody by the judgment of divorce and Richard was ordered to make weekly payments for their support. He made these payments for a while, then stopped paying, and later resumed them. The wife, after the divorce, lived in Spencer and worked. Otis then sometimes visited his father for a week at a time. When his mother became ill and was unable longer to care for Otis, he was taken, on September 23, 1929, by his uncle William, age 46, who, with his wife and two children, live on his 116-acre mortgaged farm.

Richard and William were not on good terms, their estrangement resulting from the settlement of an estate. After the death of Otis' mother, early in 1930, Richard went to the home of William and Lois to get Otis, but they refused to let the boy leave. Richard then caused William and Lois to be arrested and placed in jail on a charge of kidnapping, which charge was later dismissed. Lois testified she was "willing to obey any order of the court except that the father cannot come to our house."

Otis Duckworth, the subject of this action, testified that he was 12 years old, was in the seventh grade of school at Paragon and liked his teachers; that he made his home with his uncle William, helped around the farm and got along with the family all right. He said: "I like the farm and live stock. I don't know my step-mother well enough to say whether I like her or not. I would rather be a farmer than a street car conductor." He told of making a short visit to his father, and said: "But I didn't want to go, so I came back." He said: "My father sent me money to come up to live with him, but I didn't go . . . I want to stay where I am. I want the court to fix it so I can stay there. I don't want to go live with my father because he has not treated us right in the past. My father has not lived with my mother for about six years."

Ephriam Duckworth, the 17-year-old son of Richard, who lives in Jasonville with an aunt, testified that his father did not support the family for several years. He said: "My mother talked about father some after the separation. I don't feel extra good toward my father now."

The only evidence that the appellant is not a proper person to have custody of his son is the fact of his prosecution (prior to the divorce) for child neglect before a justice of the peace in Owen County, who found him guilty and bound him over to appear in the circuit court, and the fact that his first wife was given custody of the children in the divorce action in which she charged him with being an unfit person to be entrusted with their custody. The brother of the deceased Mrs. Duckworth testified that Richard "did not take care of the children" since 1924, but that "I know nothing against Richard Duckworth." The present Mrs. Duckworth testified that she would do her best to assist in caring for Otis Duckworth if granted his custody, and there was evidence that the home conditions in Richard's present home were good. The evidence also showed that the home and school conditions at the uncle William's were good, and that Otis was well treated by William and Lois.

The appellant makes the following propositions of law to sustain his assignment of error: (1) "A mother cannot deprive the father of his right to...