Focks v. Munger

• Decision Date: 14 May 1915
• Docket Number: 1755.
• Citation: 149 P. 300,20 N.M. 335,1915 -NMSC- 041
• Parties: FOCKS v. MUNGER.
• Court: New Mexico Supreme Court

149 P. 300

20 N.M. 335, 1915 -NMSC- 041

FOCKS v. MUNGER.

No. 1755.

Supreme Court of New Mexico

May 14, 1915

Syllabus by the Court.

Where habeas corpus proceedings are instituted by a natural mother to recover the custody of her child from the adopted mother the expressed desire of the child, 10 years of age, to be permitted to remain with the adopted mother, should not control, or be determinative of what is to the best interest of such child.

Where upon habeas corpus proceedings instituted by the natural mother for the custody of her child, against the foster mother, it appears that the child was stolen from the natural mother when but two or three years of age and placed in the custody of the foster mother, who, however, was without knowledge of theft of the child, or the name or whereabouts of its mother, and such foster mother has given the child the tenderest of care and every attention, and the evidence also shows that the natural mother is a good, responsible, and worthy mother, against whose character and capacity to take care of said child no charge is made, the natural mother is entitled to the custody of the child.

The burden of proving that the best interest of a child will be subserved thereby is not upon the parent seeking to recover its custody, but upon the party denying such restoration of the child to the custody of its parent.

Appeal from District Court, Bernalillo County; Herbert F. Raynolds Judge.

Habeas corpus by Mrs. F. A. Focks against Mrs. Mary Munger. From judgment for defendant, plaintiff appeals. Reversed, with directions.

Vigil & Jamison, of Albuquerque, for appellant.

Marron & Wood, of Albuquerque, for appellee.

ROBERTS C.J. (after stating the facts as above).

Appellee concedes that the adoption proceedings are not binding upon appellant, as she was not made a party or served with notice therein. This being true, the only question for determination here is whether, upon the facts as disclosed by the record and found by the court, judgment was properly rendered for the respondent.

It is true the trial court expressed the conclusion, upon the facts found and after an interview with the child, that "in the judgment of the court the best interests and welfare of the child require that he be left in the care and custody of the defendant, Mary Munger, and not taken from that care and custody"; but, if this conclusion is not supported by the facts, it can have no bearing upon the decision here. There was no dispute as to the facts in the case. Both the mother and Mrs. Munger, the respondent, were shown to be most excellent women, and suitable and proper persons to have the care and custody of children. The moral influence in both homes was apparently above reproach, and, while neither the petitioner nor the respondent was wealthy, yet each was shown to have sufficient resources to enable her to properly care for the child. It is true the child expressed a desire to the trial judge to be allowed to remain with his foster mother; but this was only natural, because he was taken from his own mother when but two or three years of age, and naturally looked upon her as a stranger. He had received from Mrs. Munger the kindest treatment, and returned it with his love and affection. We do not believe, however, that the expressed desire of a child, 10 years of age, should control; for it is a matter of common knowledge that children of this age bestow their affections upon those who are kind to them, and soon forget their parents, when they are taken from them by death or other causes. In the case of Moore v. Christian, 56 Miss. 408, 31 Am.Rep. 375, the court said:

"The boy, it is true, expresses a preference to remain with the appellee; but, while in doubtful cases the wishes of a child of this age will be sought, and to some extent be observed, we cannot for a moment agree that a boy of 13 can be allowed, at pleasure, to abandon his filial duties, and select elsewhere a home more agreeable either to his desires or his worldly interests. So to hold would simply be to offer a premium to the children of the poor to shirk the duties to which their station in life has called them, and to permit them, at the sacrifice of all the natural affections, to set about bettering their condition, at a period of life when the law dedicates both their persons and their services to parental control."

This being true, we must eliminate the expressed desire of the child from consideration, unless it appears from the evidence that there is a doubt as to...