Greene v. Walker

• Decision Date: 24 July 1924
• Docket Number: No. 89.,89.
• Citation: 199 N.W. 695,227 Mich. 672
• Parties: GREENE v. WALKER.
• Court: Michigan Supreme Court

227 Mich. 672

199 N.W. 695

GREENE

v.WALKER.

No. 89.

Supreme Court of Michigan.

July 24, 1924.

Certiorari to Royal A. Hawley, Circuit Judge, of Eighth Judicial Circuit.

Habeas corpus by Otto F. Greene against Ernestine Walker. Order of trial court denied relief prayed for, and petitioner brings certiorari. Affirmed.

Argued before CLARK, C. J., and McDONALD, BIRD, SHARPE, MOORE, STEERE, FELLOWS, and WIEST, JJ. Griswold & Cook, of Greenville, for petitioner.

Eldred & Gemuend, of Ionia, and Floyd E. Winter, of Greenville, for respondent.

MOORE, J.

The petitioner is the father of a daughter who was 9 years old in January. The child has lived with her grandmother and her aunt, Ernestine Walker, since she was thirteen days old. The grandmother is dead. The father sued out a writ of habeas corpus to obtain the custody of the child. He seeks by certiorari to review the action of the circuit judge in denying him the custody of his daughter.

Section 13955, C. L. 1915 (as amended by Pub. Acts 1921, No. 344), reads:

‘The father or mother of the minor, and if one of them be deceased, then the survivor thereof, being respectively competent to transact their own business and otherwise suitable, shall be entitled to the custody of the person of the minor and to the care of his education; provided, that if the judge of probate of the proper county shall in any case after examination into the facts, make an order declaring either or both of the parents incompetent or unsuitable to have the custody of person or the care of the education of the minor, in such cases the guardian appointed by the probate judge shall have the custody of the person of the minor and the care of his * * * education.’

Counsel for the petitioner insists that as his client has shown he is the father of the child, and is competent to transact his own business, that as a matter of law he is entitled to the custody of the little girl.

The return of the trial judge to the writ of certiorari is in part as follows:

‘State of Michigan-Eighth Judicial Circuit.

‘Before the Honorable Royal A. Hawley, Circuit Judge, Sitting in Chambers at the City of Ionia, in Said State.

‘In the Matter of the Petition of Otto F. Greene for Writ of Habeas Corpus.

‘This case involves the custody of the infant child, Anna Katherine Greene, the daughter of said petitioner, who is her father and only surviving parent. The controlling facts in the case are either admitted or stand undisputed and may be stated as follows:

‘The child was born on the 28th day of January, A. D. 1915, at the home of the parents in the city of Grand Rapids, in this state. The mother died on the 9th day of February, 1915, thirteen days after the birth of the child. The testimony shows that it was her wish that her sister, Mrs. Ernestine Walker, should have the custody of the child. After the death of the mother the child was immediately taken to the home of her maternal grandparents, Mr. and Mrs. Matlock, in the city of Greenville, Mich., where the respondent and her husband, Mr. and Mrs. Walker, were then also living. There they remained together in the Matlock home for a period of three months or thereabouts, when they all together removed to the Walker home which adjoined the Matlock home, and where they lived together for one year or thereabouts. During this time a considerable of the care of the child devolved upon the respondent. Since that time, with the exception of two years, the Matlocks and the Walkers lived upon adjoining lots and to quite an extent practically as one family. During that two-year period they lived near each other, and the same condition of intimacy existed between the two families and during the entire time the child has been an inmate either in one home or the other up until the present time, and has been the object of the care, training, and maintenance of both Mrs. Matlock and Mrs. Walker, who is the sister of the mother of the child.’

‘It is the wish of the petitioner that the custody of the child be given to him. He was appointed guardian of the estate of his two minor children in January, 1916, and his letters of guardianship are now in full force and effect. He has no home to which to take the child except the home of his parents, Mr. and Mrs. O. W. Greene in the city of Royal Oak, Mich. The inmates of that home are his father, who is in his eighty-second year, and in at least somewhat feeble health, his mother, in her seventy-first year, who also is not in vigorous condition, and himself and his son, fifteen years of age.

‘I have no question but what the Greene home is one of refinement, pervaded by a Christian atmosphere, and one in the confines of which a child would derive no harm. The home of the respondent is at least equal in all those requisites to the home which petitioner seeks to take his daughter.

‘I realize how desirable it is that this child should come into more familiar contact and association with her brother and with her father, but I think that there are other considerations which are more vital to the child's welfare and more controlling in this case than either or any of these.

‘I also realize that ordinarily the parent has and should have a superior right to the custody of his child, and that his poverty or lack of financial means should not be given any great weight to deprive him of this natural right, but I also realize that the rule of superior right is not a hard and fast rule. A child is not a chattel nor subject to ownership as such.

‘The paramount question under the law in all cases of this character is the welfare of the child. All other considerations must yield to this one. The dying wish of the mother, the desire and purpose of the father, the otherwise superior right of either father or mother, even the wish of the child herself, are and must not be entirely controlling.

‘It appears in the case without question that the cost and expense and trouble of the care and nurture of his child from the date of its mother's death until the present time has been borne by Mrs. Matlock and Mrs. Walker, and to a considerable extent by Mrs. Walker alone.

‘Admittedly the father has never paid one cent for the maintenance of his daughter. Since March 31, 1915, he has never seen her, except on three or four different occasions, and then neither by nor through any initiative or effort of his own. He admits that the daughter, prior to the hearing of this case, was a stranger to him, and that he would not have known her if he had met her on the street. On at least a majority of the occasions when he has seen her it has been through the efforts of Mr. and Mrs. Matlock, and upon one occasion, and as I understand it, the last occasion he ever saw her prior to the hearing, his attention was especially challenged to his daughter by Mr. Matlock, who asked him to come and see her as she was then on the street in an automobile. He did so looked at her, and turned away without saying a word either to her or to anyone else. Admittedly he had not seen her for six years prior to the time that this hearing in court was commenced. Under his own admission he gave her a Christmas present on her first and second Christmas anniversaries, but never since, except as he has done so through the instrumentality of his son. This absence of interest on the part of the father requires no characterization by the court.

‘Some excuse is attempted to be made for it under the claim that the feelings between himself and the Matlock and Walker families were considerably strained, but I can conceive of no strained relations between families that would keep a loving father away from his daughter whenever opportunity was afforded to see her, or that would keep a father a stranger to his child during the first nine years of her lifetime.

‘Mrs. Greene, the grandmother, asserted upon the witness stand that she would have known the child if she had seen her upon the street, and this is probably true. Aside from the three or four occasions above referred to, she has not seen her, except as she has seen her upon the street, and is practically an entire stranger to her granddaughter. At least the little girl stated to me that she would not have known her father or grandmother Greene up to the time of the hearing in court if she had met them at any place.

‘The Walkers have become attached to the child to the same extent as if she were their own, and are very much interested in her present and future, as they have been during the years of her past. They are willing to afford her the opportunities of an education in the Greenville schools, which have a high standing among the schools of the state, and also to give her a higher education if desired. They have one child, a boy eleven or twelve years of age, and the two of them have been brought up together. They are also possessed of means and income sufficient to warrant the hopes and expectations of this child. Mr. and Mrs. Walker are people of high character and standing in their community. They are both comparatively young in years, and can exercise the right kind of influence and afford the proper discipline.

‘The respondent, Mrs. Walker, in my judgment will carefully see to it that this child is given at the time of life when she most needs it, the care, training, and nursing which can only be given by an intelligent mother solicitous for the welfare of her child.

‘It is also possible that the grandmother Mrs. Greene, would do likewise to the best of her ability; but even so, it is uncertain at her time in life and in her condition of health how long this would last, and how soon again it would be necessary that the child be shifted to another home or be an object of indifference and neglect.

‘In my judgment the best interest of the child imperatively requires that she remains where she is, and accordingly the writ of habeas corpus is denied.

‘Royal A. Hawley, Circuit Judge.’

The court made an order in accordance with the opinion.

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