Fleshood v. Fleshood

• Court: Virginia Supreme Court
• Writing for the Court: Holt, J.
• Citation: Fleshood v. Fleshood, 144 Va. 767, 130 S.E. 648 (1925)
• Decision Date: 17 December 1925
• Parties: VERNON FLESHOOD v. REUBEN FLESHOOD, BY C. P. ABERNATHY, HIS NEXT FRIEND.

Page 767

144 Va. 767

VERNON FLESHOOD v. REUBEN FLESHOOD, BY C. P. ABERNATHY, HIS NEXT FRIEND.

Supreme Court of Virginia, Richmond.

December 17, 1925.

1. PARENT AND CHILD — Custody of Child — Surrender of Custody. — Where the parent or custodian has voluntarily surrendered the custody of the child, or abandoned it to others, and subsequently seeks to regain possession, and it appears that it is for the child's best interests to remain with those to whom its custody has been given, the court will so order. Where, however, it appears that the welfare of the child will be best subserved by taking the child away from such custody, its welfare will control. The tendency is to hold a parent to his agreement unless abuse of the agreement is shown, and the welfare of the child requires a change of custody.

2. PARENT AND CHILD — Custody of Child — Interest of Child. — The interest of the child is ever the dominant consideration in cases involving its custody.

3. PARENT AND CHILD — Custody of Child — Maternal and Paternal Grandfathers — Case at Bar. — In the instant case, the father not being in a position to take charge of the custody of his child, on the death of its mother, transferred its custody to its maternal grandfather, with whom it lived for about two and a half years. The father then, with the permission of the maternal grandfather, took the child for a visit to his second wife's people. Afterwards the child was taken to the home of its paternal grandfather, and was held there by the father whose intention was to retain possession permanently. The request of the maternal grandfather for the return of the child was refused. On habeas corpus it was ordered that the child be returned to the maternal grandfather. Both of the grandfathers were of excellent character and comfortably off. From these facts alone it would appear that the award of the custody of the child to its maternal grandfather was correct; but it also appeared that a wife, a son and a daughter of the maternal grandfather had died of consumption; that another son was stricken and the health of his daughter upon whom the care of the child would devolve was precarious, therefore, the Supreme Court of Appeals remanded the child to the custody of its father, who was required to keep it at the home of his father. The maternal grandfather and his daughter were given the right to visit it at all convenient times, and also the right hereafter to show that the dangers suggested no longer existed.

Error to a judgment of the Circuit Court of Brunswick county, in habeas corpus proceeding. Judgment for petitioner. Defendant assigns error.

The opinion states the case.

Buford & Raney, for the plaintiff in error.

Turnbull & Turnbull and Irby Turnbull, for the defendant in error.

HOLT, J., delivered the opinion of the court.

This is a habeas corpus proceeding involving the custody and control of Reuben Fleshood, infant son of Vernon Fleshood, the petitioner here, and grandson of the respondent, C. P. Abernathy.

Vernon Fleshood, the plaintiff in error, sometime during the year 1918 intermarried with Minnie Abernathy, a daughter of C. P. Abernathy. Of that marriage there was born, on May 20, 1919, a child, Reuben Fleshood. The mother died when he was about eighteen months old and on November the 21st, 1920. He was cared for by his paternal grandparents until sometime in February, 1921, when his custody and care was transferred to his maternal grandfather, C. P. Abernathy. Whether the father took this son to the grandfather or the grandfather himself came for his grandson and took him home is not clear, but is not important. The transfer was made with the full consent of the father. In the spring of 1923 the father remarried. His second wife at the date of her marriage lived in Petersburg and was between twenty and twenty-one years old. In September following the father went to Mr. Abernathy's home and asked permission to take his child to Petersburg to visit his wife's people. This permission was granted. The child was afterwards taken to the home of F. F. Fleshood, Vernon Fleshood's father, and was held there by the father whose intention was to retain possession permanently. The request of Mr. Abernathy that he be returned to him was refused and this proceeding was instituted for his recovery. A writ of habeas corpus issued on September 29, 1923, and on October 23, 1923, final order was entered awarding the child to the grandfather, as prayed for in his petition. To this action of the court exception was duly taken. Petition for writ of error and supersedeas was presented and awarded on January 29, 1924.

The law governing litigation of this character is well settled. A decision on the facts is frequently difficult and always important. No class of cases imposes upon courts graver responsibilities.

This satisfactory statement of its present status appears in a note, Vol. 31 Am. & Eng. Anno. Cases, page 758, and accords with the conclusion of this court written into many of its decisions.

"Many cases hold that where the parent or custodian has voluntarily surrendered the custody of the child, or abandoned it to others, and subsequently seeks to regain possession, and it appears that it is for the child's best interests to remain with those to whom its custody has been given, the court will so order. This is especially true where it is shown that the child is well provided for in its new home, is surrounded by influences likely to promote its best interests and where tender relationships and affections have sprung up between the child and those with whom it has been living. Where, however, it appears that the welfare of the child will be best subserved by taking the child away from such custody, its welfare...