In re Lally

• Court: Iowa Supreme Court
• Writing for the Court: KINNE, J.
• Citation: In re Lally, 85 Iowa 49, 51 N.W. 1155 (Iowa 1892)
• Decision Date: 11 May 1892
• Parties: In the Matter of the Guardianship of MARY and MAGGIE LALLY, Minors, etc., Appellees, v. NELLIE FITZ HENRY, as Guardian of said Minors, Appellant; MICHAEL LALLY, Appellee, v. JAMES and MARY SULLIVAN, Appellants

51 N.W. 1155

85 Iowa 49

In the Matter of the Guardianship of MARY and MAGGIE LALLY, Minors, etc., Appellees, v. NELLIE FITZ HENRY, as Guardian of said Minors, Appellant; MICHAEL LALLY, Appellee, v. JAMES and MARY SULLIVAN, Appellants

Supreme Court of Iowa, Des Moines

May 11, 1892

Appeals from Lee District Court--HON. J. M. CASEY, Judge.

The first cause stated is a proceeding to annul and set aside the appointment of the appellant as guardian of the minors Mary and Maggie Lally. The second is a suit in equity to annul and set aside the articles of adoption whereby James and Mary Sullivan, the appellants, hold possession of the minor Lizzie Lally. The court below ordered the children turned over temporarily to their father, Michael Lally, and continued the cause for final determination. From this order both the guardian and James and Mary Sullivan appeal. Both causes were tried below to the court without a jury, and it is agreed that both shall be tried together here on the same evidence.--Reversed.

REVERSED AND REMANDED.

Parsons & Dolan, for appellants.

D. F Miller, Sr., for appellee.

OPINION

KINNE, J.

March 10, 1890, Nellie Fitz Henry was appointed and qualified as guardian of the minors, Mary Lally, aged six years, and Maggie Lally, aged four years, on the grounds that Michael Lally, their father, had abandoned them; that he was an habitual drunkard, and an unfit person to have the control and custody of said children. On the same day Lizzie Lally, then two years old, and a daughter of said Michael Lally, was adopted by James Sullivan and Mary Sullivan, his wife. Articles of adoption were duly filed for record, being signed by James and Mary Sullivan and the mayor of Keokuk, where said minors then resided. March 18, 1890 Michael Lally instituted these proceedings for the revocation of the appointment of the guardian, on the grounds that he had resided in Keokuk for seventeen years; that his wife died August 5, 1889; that he owned a homestead in the city; that he had made arrangement for the care of said children, and that the grounds alleged for the appointment of said guardian were untrue. At the same time he began his suit against the Sullivans, making substantially the same allegations, and attaching thereto the articles of adoption heretofore referred to, and praying that they might be annulled.

The guardian appeared and admitted the residence of the plaintiff; that he had a homestead, which it was averred he acquired by descent. She further avers that he abandoned said children and left the state while under the influence of liquor, making no provision for their support; that they were not in good condition, and showed evidence of want of proper care; that, after such abandonment, the child, Lizzie, was adopted by the Sullivans, and had a good home; that the plaintiff, though absent for over two months, did not contribute anything towards the support of said children; that the plaintiff had been left with ample means by his mother, which he had squandered by excessive drinking and continual intoxication, and that when he left the state he had no property except his homestead and furniture; that he has no means; that the guardian had provided a permanent home in fulfillment of the wishes of the ward's mother, at the Immaculate Conception Academy of Davenport, Iowa, an educational institution, where they are to be cared for, supported and educated free of expense. She also avers that said wards have no estate. She states that the plaintiff has for a long time been given to the excessive use of intoxicants, whereby he had lost his position, and was unfit to have the care and control of said children; that the best interests of the children will be attained by leaving them where they are, and that the plaintiff did not intend to care for said children, but intended to turn them over to the care of others who are irresponsible, and of a different religious belief from said children and their parents.

James and Mary Sullivan answer the plaintiff's petition by a general denial, and also state that they are the only blood relation of the child, Lizzie; that they give her a good home and the same care and love as their own children. They also make the answer of the guardian their answer herein, and plead that they hold the child by the articles of adoption heretofore referred to.

I. The only question involved in these cases is the custody of the three minor children, all under seven years of age. Our statute provides that the parents "are the natural guardians of their minor children, and are equally entitled to the care and custody of them."--Code, section 2241. Also that on the death of one parent the survivor becomes the guardian. Id. Section 2242. Notwithstanding the statutory provisions, the weight of modern decisions is clearly favorable to the holding that the right of the parent to the custody of the child, is not absolute. It must be determined, in a case like this, in view of the best interests of the child. That is the controlling consideration. Bonnett v. Bonnett, 61 Iowa 199, 16 N.W. 91; Shaw v. Nachtwey, 43 Iowa 653; Drumb v. Keen, 47 Iowa 435; Fouts v. Pierce, 64 Iowa 71, 19 N.W. 854; Jenkins v. Clark, 71 Iowa 552, 32 N.W. 504. It is said in Joab v. Sheets, 99 Ind. 328, that "the question of the custody of the child was one in which the rights of the child were primarily involved, and where those of the parents were of secondary consideration." In United States v. Green, 3 Mason 485, STORY, J., says it is an entire mistake to suppose that the father has an absolute vested right in the custody of an infant. In Corrie v. Corrie, 42 Mich. 509, 4 N.W. 213, it said: "In contests of this kind the opinion is now nearly universal that neither of the parents has any right that can be allowed to seriously militate against the welfare of the child. The paramount consideration is what is really demanded by its best interests." In re Bort, 25 Kan. 308, the doctrine announced is that "the best interest of the children is the paramount fact. Rights of parents sink into insignificance before that." Sturtevant v. State, 15 Neb. 459, 19 N.W. 617; In re Stockman 71 Mich. 180, 38 N.W. 876. See, also, Code, sec. 2301. This just rule may now be regarded as settled.

II. Now, it is clear that a parent may lose the right of custody by his own voluntary act, by misconduct, and even sometimes by misfortune. He may lead such a grossly immoral and profligate life, may become so habituated to the use of intoxicants as to be utterly unfit to have the custody of a child, or may by neglect to provide for it justify a court in refusing to place it in his custody. State v. Bratton, 15 Am. Law Reg. (N.S.) 359.

Applying the law to the facts first of the equity case, we find that Lizzie Lally was...