Ex parte Yahola

• Decision Date: 18 May 1937
• Docket Number: 27212.
• Citation: 71 P.2d 968,180 Okla. 637,1937 OK 306
• Parties: Ex parte YAHOLA. v. BERRYHILL et al. YAHOLA
• Court: Oklahoma Supreme Court

71 P.2d 968

180 Okla. 637, 1937 OK 306

Ex parte YAHOLA.

YAHOLA v. BERRYHILL et al.

No. 27212.

Supreme Court of Oklahoma

May 18, 1937

Rehearing Denied July 13, 1937.

Supplemental Opinion Sept. 14, 1937.

Application for Second Petition for Rehearing Denied Oct. 12, 1937.

On Rehearing.

Syllabus by the Court.

1. The right of a father to the custody of his child is not absolute. Where, from the birth of his child a father showed no interest in it, its mother dying one month after its birth, and where, after five years, he instituted an action for its custody only after threatened discontinuance of his government allowance unless he took an interest in the child the court was justified in leaving its custody in its maternal grandparents who had nursed it and cared for it since its birth, other considerations being equal.

2. A habeas corpus proceeding involving the custody of an infant is not strictly a writ of liberty but is in its nature an equitable proceeding for determining the care and custody of said infant, and a court having jurisdiction of the parties and the subject-matter not only may determine the right to the custody, but may also adjudge financial responsibility upon the father for the support of the child.

Appeal from District Court, Okmulgee County; S. L. O'Bannon Judge.

Action for writ of habeas corpus by Locust Yahola, father of Zelma Yahola, for the custody of Zelma Yahola, against Eliza Berryhill and another. Judgment for defendants, and plaintiff appeals.

Judgment modified and, as modified, affirmed.

WELCH J., dissenting.

Philip Jackson, of Wetumka, and Pitchford & Pitchford, of Okmulgee for plaintiff in error.

Merrick A. Whipple, of Tulsa, for defendants in error.

PHELPS Justice.

This was a habeas corpus action by the father of a child five or six years of age, against the child's maternal grandparents, for the custody of the child. After several hearings and the entering of successive orders in the cause, the trial court granted the exclusive custody to the grandparents, and the father appeals.

The evidence reveals that the father, whom we shall hereinafter call plaintiff, was married at the age of nineteen and that shortly thereafter his mother had the marriage annulled. Prior to the annulment, however, his wife became enceinte and about four months after the annulment gave birth to the child involved herein. The child's mother (plaintiff's ex-wife) was at that time living with her parents, the child's maternal grandparents, who are the defendants. Plaintiff did not appear concerned or in any manner interested in the birth of his daughter, never went about the child or its mother, and its mother died, probably from the effects of said childbirth, about a month after the birth. The maternal grandparents, defendants, kept the child and cared for her, and during the five years of her life preceding the filing of this action the plaintiff manifested little, if any, interest in her.

Shortly before the filing of this action, the plaintiff was informed by the Bureau of Indian Affairs, that the Bureau would withhold further payment of funds to the plaintiff, who is an Indian, until and unless he should pay more attention to his baby. Plaintiff testified that the threat of the Bureau to withhold payment of his allowance was the cause of his instituting this action to obtain custody of the child. In this connection the remarks of the trial judge, to the following effect, are clearly justified by the record:

"I don't think that Locust Yahola has ever manifested very much interest in this baby. I am considering not only the testimony that you have offered today, but also the testimony that was offered originally in the hearing. Locust paid no attention to this baby at all until the Department of the Interior advised him if he did not do it, they were going to cease to pay him anything out of the funds he had on deposit in the Interior Department from which he receives this one hundred and fifty dollars a month which he has testified about before."

We shall not set forth the evidence in great detail. The plaintiff has an income sufficient to maintain the child, if he had the real inclination to do so. He lives with his mother, and it was remarked by the trial judge, with fairly good reason, that this action was really between the two grandmothers of the child. The plaintiff is not shown to have been lacking in moral character. On the other hand, the defendant grandmother is also financially able to care for the child, and is not shown to have been an unfit person to have the child's custody.

The right of the father to the custody of his minor child, when its mother is dead, is well recognized. Usually the fact of such close relationship is accorded almost exclusive importance in determining who shall have the custody of the child. The rule, however, is not without its exceptions. It is not an absolute right, but one which must at all times be qualified by considerations affecting the welfare of the child.

The conflict illustrated by the present case has, in one form or another, been before this court frequently. In some cases the father has prevailed and in other cases he has been denied the custody. Each case depends upon its own facts and circumstances. Ordinarily, even though the financial interests of the child might be better served elsewhere, the custody is left with the father if he is able to reasonably care for the child, and if he shows himself to be a fit person to be intrusted with its custody.

But where his conduct has evidenced a state of indifference to the child, as opposed to the ability, good character, and love possessed and manifested by his opponents who have reared such child from babyhood, the court may be justified in finding that the best interests of the child would be more properly served by leaving it with the latter. We think that the instant case is of that character. Here the defendant maternal grandmother attended the birth of the baby in her own home, when no one knew where the plaintiff was. From earliest babyhood she reared the child as her own, and no doubt has such an affection for the baby as its own mother would have had. The years went on and the child reached the age of five or six years, and it was not until the plaintiff's own financial affairs were threatened that he manifested any interest whatsoever in the child. Can it be said that the rule applied in normal cases should obtain here? In the light of the history of the parties, it would appear very doubtful. And we make that statement, having fully in mind the fact, as evidenced by the record, that the defendant grandmother herself, in her zeal to retain custody of the child, has not always used good judgment in certain statements made to the child concerning the plaintiff and his mother.

In Bishop et ux. v. Benear, 132 Okl. 116, 270 P. 569, the action was habeas corpus by the father of minor children against their maternal grandparents, as here. The trial court evidently was of the impression in that case that by reason of our statutes (the same as section 1685, O.S.1931 [10 Okl.St.Ann. § 5]) the father was entitled to the custody of the children unless he was an unfit person to rear them. This court reversed the judgment, pointing out that the best interests of the children themselves were paramount to the rights of the father. In Hamann v. Miesner et ux., 148 Okl. 50, 297 P. 252, 253, the action was likewise by the parent against the child's grandparents. The trial court left the custody of the child with the grandparents, just as in this case, and on appeal the judgment was affirmed. In so affirming the judgment, and in speaking of the presumption of law to the effect that the parent is the proper person to have the custody of the minor child, we said: "However, this presumption of the law has exceptions. Where a father has abandoned his child to strangers or near relatives, as in this case to the grandparents, and left its care and custody exclusively to them for a long period of time, ties of affection and love have grown up between the infant child and its grandparents. He does not come with the same rights as the man who has kept in touch with his child and constantly visited it. In so far as the child is concerned in the case at bar, the father comes almost as a stranger to the child. If the ties of blood and parenthood were not strong enough to cause him to take an interest in this helpless infant, to assist in its care, it may not be strong enough for him to give it the proper care and training if it were committed to his custody."

The facts in the instant case are singularly akin to those in the case just quoted. The same result was reached in Morris v. Morris, 81 Okl. 222, 198 P. 70. The same was true in Richards v. Christy et al., 150 Okl. 221, 1 P.2d 168, and in Ex parte Lebsack, 168 Okl. 299, 32 P.2d 923, 925 where a father brought an action against the maternal grandparents of...