G. C. J. v. G. G., 35564

Decision Date21 May 1974
Docket NumberNo. 35564,35564
PartiesG.C.J., Petitioner, v. G.G. and M.D.G., Respondents. . Louis District, Division One
CourtMissouri Court of Appeals

Raymond J. Issa, St. Louis, for petitioner.

Hale W. Brown, Kirkwood, for respondents.

WEIER, Judge.

This is an original proceeding in habeas corpus brought by the father of two minor children to obtain custody of the children from the maternal grandparents.

Petitioner, G.C.J., married C.G.J. on April 20, 1968. Two children, both daughters, were born to this marriage. On March 12, 1971, the mother, C.G.J., was granted a divorce from petitioner. The divorce decree awarded her custody of the two minor children. From the time she separated from petitioner to the date of her death, she and her children lived with her parents, G.G. and M.D.G., the respondents herein. After the mother was killed in a traffic accident on August 21, 1972, the two minor children continued to live with respondents. Shortly after her death, on August 29, 1972, G.C.J., the father, filed a petition for a writ of habeas corpus in the circuit court for the custody of his two minor children. The writ was ordered to issue against respondents, the children's maternal grandparents, and was returnable September 5, 1972. When they filed their return to the writ of habeas corpus on September 5, 1972, the court, on its own motion, transferred the cause to the Juvenile Court of St. Louis County. After a partial hearing on September 26, 1972, at which two witnesses testified, the cause was continued, and the court granted the petitioner and the respondents temporary custody of the children on alternate weeks. The hearing was resumed on February 8, 1973. After several witnesses testified, the cause was continued. The hearing was again resumed on May 25, 1973. Since neither counsel requested that the court enter findings of fact, conclusions of law and judgment, the court entered opinion and judgment memoranda on June 6, 1973. The court denied the father's petition, finding him unfit to have the custody of his two minor children. The court ordered that temporary custody be transferred to the juvenile court and placed physical custody of the minor children in respondents.

Petitioner filed his petition for a writ of habeas corpus in this court on July 11, 1973. By July 19, 1973, we had received and considered the petition, the respondents' return and petitioner's reply to the return, and on that date, by consent of the parties, we ordered that the transcript of the hearing before the court below be certified to us for an independent determination of petitioner's fitness, and for a final decision in this proceeding. We also ordered petitioner and respondents to file briefs, and placed temporary custody of the children in respondents.

Petitioner, in his brief before this court, contends that the court below erred in transferring temporary custody of his children to the juvenile court and in placing physical custody of the children in respondents. Since this is an original proceeding in habeas corpus, our inquiry cannot extend to the review of alleged trial errors not affecting jurisdiction, as on appeal. State ex rel. Stewart v. Blair, 357 Mo. 287, 208 S.W.2d 268, 275(4) (banc 1947); Ex parte Gounis, 304 Mo. 428, 263 S.W.2d 988, 990(1) (banc 1924). 1 The court below, as this court has, properly secured jurisdiction over the minor children and those having actual custody of them the maternal grandparents. The jurisdiction of the divorce court which originally awarded custody of the minor children to their mother abated when the mother was killed in the traffic accident on August 21, 1972. In re Shepler, 372 S.W.2d 87 (Mo. banc 1963); In re Wakefield, 365 Mo. 415, 283 S.W.2d 467, 471(5, 6) (banc 1955). Thus, habeas corpus is and was a proper proceeding to adjudicate the question of chilc custody. And, in this proceeding, the scope of our inquiry is limited to a determination of petitioner's fitness to secure custody of his children and to an award of custody that will promote the best interests of the children. In re Shepler, supra 372 S.W.2d at 90(2); Ex parte Badger, 286 Mo. 139, 226 S.W. 936 (banc 1920). We make such a determination independently, frequently after reference for the taking of testimony, but here, based upon the transcript of the testimony heard in the court below in the prior habeas corpus proceeding, by consent of parties.

It has been consistently held by our courts that a natural parent has a superior right to the custody of his or her children as against third persons. In re Wakefield, supra 283 S.W.2d at 472(7). This superior right, however, vanishes whenever it is established that the parent is an unfit person or is unable to care properly for the children (In re Wakefield, supra 283 S.W.2d at 472(7)), since it is the well-being of the children that is our paramount concern. In re Shepler, supra 372 S.W.2d at 90(2).

Here the evidence demonstrates petitioner to be an unfit person to have custody of his two minor daughters at this time. Petitioner lives with his mother, father and ten-year-old sister in a six room house. At the time of the hearing on May 25, 1973, petitioner had been employed as a truck driver for nine months and was earning $3.20 an hour. Prior to this, petitioner's employment status was anything but stable. For a year and a half he had worked part time, one or two days a week, in...

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9 cases
  • Frederick v. Frederick
    • United States
    • Missouri Court of Appeals
    • June 2, 1981
    ...parent over and against third persons. She argues for a departure from this approach and further argues that the case of G.C.J. v. G.G., 510 S.W.2d 193 (Mo.App.1974) supports such departure. The court, in this case, declared at "It has been consistently held by our courts that a natural par......
  • J. L. W. v. D. C. W., 35635
    • United States
    • Missouri Court of Appeals
    • February 18, 1975
    ...and that the modification is necessary to serve the best interests of the child.' (effective Jan. 1, 1974)4 But see G.C.J. v. G.G., 510 S.W.2d 193 (Mo.App.1974), holding that evidence of past conditions is not foreclosed for clarification and casting light upon existing conditions. But that......
  • K.K.M., In Interest of
    • United States
    • Missouri Court of Appeals
    • January 25, 1983
    ...on the prior guardianship order. The jurisdiction of the dissolution court abated when the child's father died. See G.C.J. v. G.G., 510 S.W.2d 193, 195[1-4] (Mo.App.1974). This court agrees with Judge Emerson that the letters of guardianship are A question of jurisdiction may be raised at a......
  • B.M.P. v. G.H.P., 43361
    • United States
    • Missouri Court of Appeals
    • February 10, 1981
    ...court abated due to the death of a parent to whom custody had been awarded. In re Shepler, 372 S.W.2d 87 (Mo. banc 1963); G.C.J. v. G.G., 510 S.W.2d 193 (Mo.App.1974). See also In re Duncan, 365 S.W.2d 567 (Mo. banc 1963). Habeas corpus is also proper where the order awarding custody is cha......
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