In re Mary A. Brown

• Decision Date: 08 July 1916
• Docket Number: 20,641
• Citation: 98 Kan. 663,159 P. 405
• Parties: In re MARY A. BROWN, Petitioner
• Court: Kansas Supreme Court

159 P. 405

98 Kan. 663

In re MARY A. BROWN, Petitioner

No. 20,641

Supreme Court of Kansas

July 8, 1916

Decided July, 1916.

Original proceeding in habeas corpus for the custody of a child.

SYLLABUS

SYLLABUS BY THE COURT.

1. PARENT AND CHILD--Parental Right to Custody of Child--Order of Probate Court. The right of a mother to the custody of her child is not impaired by an order of the probate court appointing a guardian, notwithstanding a recital therein that the guardianship extends to the person as well as the property, where no issue concerning the mother's fitness in that regard was actually presented or determined in the proceeding in which such appointment was made.

2. SAME--Mother Entitled to Custody of Child--Evidence. The evidence held not to require depriving a mother of the custody of her child.

A. M. Harvey, of Topeka, W. W. Harvey, of Ashland, and W. E. Broadie, of Kinsley, for the petitioner.

George A. Neeley, of Hutchinson, for the respondents.

OPINION

MASON, J.:

The father of Louise F. Carter, now seven years of age, died intestate in November, 1914, leaving considerable property. His widow, the child's mother, was appointed her guardian. In August, 1915, she resigned as guardian, and at her request P. H. Johnson was appointed in her place. He assumed control of Louise and placed her in the immediate care of Henry Ficken and his wife. The mother (now Mary A. Brown, having remarried) brings this proceeding against Johnson and the Fickens, asking that the custody of the child be restored to her. The guardian at first filed a disclaimer, but now resists the application on the ground that by virtue of his appointment in that capacity he has the legal right to control his ward, and that the character of the petitioner renders her an improper person to be charged with that responsibility.

1. It has been said on the one hand that in the absence of a statute to the contrary a guardian of the person has a right to the custody of his ward even as against parents (21 Cyc 62), and on the other that a statute giving a preference to parents in that regard is merely declaratory of the common law (The People v. Hoxie, 175 Ill.App. 563). Some of the cases cited as bearing on the question are affected by local statutes, and some by the archaic notion that the mother is entitled to little consideration in the matter. It is not necessary to attempt to state any general rule by which to solve controversies between parent and guardian. Each must necessarily be determined according to its peculiar facts. In the present instance there is no difficulty in saying that the claim of the petitioner to the control of her child is not affected in the slightest degree by the appointment of the guardian. The original entry of the order of the probate court making such appointment, in August, 1915, did not in terms refer to guardianship of the person, but such a reference was inserted after this proceeding was begun, with the knowledge of the present probate judge, by the occupant of the office at the time the order was made, who testified that the additional recital was omitted from the original entry by oversight. This was a somewhat offhand way of undertaking to correct a court record, but if the alteration is given full force it does not militate against the conclusion already stated. The mother, as the surviving parent, was the natural guardian of the person of the child. (Gen. Stat. 1909, § 3966.) The statute makes no express provision for any other guardian of the person during her life, and there could be no occasion for such an appointment unless she were found to be unfit for the trust. In the...