Holmes v. Derrig

• Decision Date: 13 June 1905
• Citation: 127 Iowa 625,103 N.W. 973
• Parties: HOLMES v. DERRIG ET UX.
• Court: Iowa Supreme Court

127 Iowa 625

103 N.W. 973

HOLMES

v.DERRIG ET UX.

Supreme Court of Iowa.

June 13, 1905.

Appeal from District Court, Webster County; J. H. Richard, Judge.

Habeas corpus proceedings to determine right to the custody of the plaintiff, James Melby Holmes, an infant. Judgment awarding such custody to Almon B. Holmes, and defendants appeal. Reversed.Healy Bros. & Kelleher, for appellants.

Mitchell & Hackler, for appellee.

WEAVER, J.

The plaintiff is the only child of the marriage of Chauncy F. Holmes and Anna Derrig, and at the commencement of these proceedings was about 3 1/2 years of age. Almon B. Holmes, who appears as next friend of the plaintiff, is a brother of Chauncy F. Holmes, and the defendants are the father and mother of Anna. On January 7, 1901, Chauncy F. Holmes died, leaving his wife and child without means of support. Soon after the death of her husband, Anna Holmes left the child in the custody of her parents, and engaged in service as a domestic. In September, 1901, she was remarried to one John Hanson, and of this marriage another child was born. On January 10, 1903, Mrs. Hanson died, leaving both plaintiff and the child of her marriage with Hanson in the care of the appellants. Since the death of his wife Hanson has never assumed or had the custody of either child, and has contributed nothing to their support. Neitherof the parties to this controversy is possessed of any considerable means, and, so far as shown, all are respectable in character and reputation. The testimony tends to show that upon her deathbed the mother of the children verbally confided them to the care of her parents giving particular emphasis to such request concerning the plaintiff, whom her death left wholly orphaned. The appellants appear to have accepted the trust thus committed to them, giving the children suitable care and attention, and are anxious to continue so to do. A few months after the death of Mrs. Hanson there occurred some negotiation between her surviving husband, John Hanson, and Almon B. Holmes, who was then and still is a resident of Franklin county, resulting in an attempt on part of the latter to adopt plaintiff. To effect this purpose, Hanson, with Almon B. Holmes and wife, appeared before the clerk of the district court of Webster county, and that officer, upon the petition of Hanson, united with Holmes in the execution of an article or deed of adoption. The instrument recites that James Melby Holmes was without living parents, and was then temporarily in the custody of his grandparents, who were unable to give him proper care; and that the clerk assumed to act in the premises, and consent to the proposed adoption, by virtue of the authority vested in him by the provisions of Code, § 3251. The grandparents had no notice or knowledge of this proceeding until after the alleged adoption had been consummated, and upon their refusal to recognize the validity of the deed and surrender the child this proceeding was begun. The deed of adoption was recorded in the office of the county recorder of Webster county, but was never recorded in Franklin county, the home of Almon B. Holmes, until after the trial in the court below, and before final judgment was entered. The trial court awarded the custody of plaintiff to Almon B. Holmes, and the defendants appeal.

In an opinion or statement filed in the case the trial court appears to concede the invalidity of the deed of adoption prior to its record in Franklin county. It also concedes to the grandparents the natural guardianship of the plaintiff, but, in view of the fact that they are advanced in years, have but little means, and are burdened with the care of another infant child of their deceased daughter, and that, on the other hand, the uncle is a comparatively young man, with better prospects of accumulating property, thus giving the plaintiff the advantages of a somewhat better home, the court concludes that plaintiff's interests will be best served by upholding the uncle's claim to his custody. From this conclusion of the learned trial court we feel compelled to dissent. It is true that the dominant consideration in cases of this kind is the interest of the infant, but the parent or other natural guardian of the child has rights in the premises which cannot be ignored. Were it otherwise, and the award of the custody of the infant were made to depend upon the comparative wealth and financial prospects of the claimants, then no parent in the lowlier walks would be safe in the possession and guardianship of his own children against the roving fancy of a rich claimant who may find it less burdensome to adopt than to produce. Dunkin v. Seifert, 123 Iowa, 64, 98 N. W. 558. It may be admitted that the natural guardian may become so untrustworthy or unfit for the responsibility that in the interest of humanity and society the law will interpose and deprive him of the control of his own child (Code, §§ 3246-3249), but in the absence of extreme neglect of natural and legal duty courts will always be slow in refusing recognition to the paramount right of the parent, or of one who is by nature in loco parentis. Had the trial court felt justified in finding that the appellants, or either of them, were of such habits or character as to unfit...