Jackson v. Fitzgerald
| Decision Date | 27 November 1962 |
| Docket Number | No. 3045.,3045. |
| Citation | 185 A.2d 724 |
| Parties | Roberta M. JACKSON, Appellant, v. Charles S. FITZGERALD, Appellee. |
| Court | D.C. Court of Appeals |
John J. Spencer, Jr., Washington, D. C., for appellee.
Before HOOD, Chief Judge, QUINN, Associate Judge, and CAYTON (Chief Judge, Retired) sitting by designation under Code § 11-776(b).
Mrs. Jackson filed a complaint against her son-in-law, asking for custody of her four-year-old granddaughter, or in the alternative, for the right of visitation. The child, whose mother had died, was in the custody of its father. On motion of the defendant-father, the trial court dismissed the complaint on the ground that it failed to state a cause of action. Under the order, plaintiff was given leave to file an amended complaint. She did not avail herself of that opportunity, but brought this appeal.
The substance of the complaint was that the child and its mother had lived with plaintiff for a year at one period, and for some seven months at a later period; that during such periods plaintiff expended considerable money for the support of the child, and had devoted much care and attention to it. Claiming that the child would benefit by her companionship, the grandmother asked for permanent custody, or in the alternative, for the right of visitation.
We agree with the trial court that the complaint did not state a case on which relief could have been granted. Rule 5 of the Domestic Relations Branch requires that in complaints for custody, "the circumstances constituting grounds for custody shall be stated with particularity." Even in the absence of such a rule we would feel constrained to hold that a complaint which stated no more than this one did, is insufficient.
The child's mother having died, the father was its only natural guardian and custodian, and is entitled to custody and control unless it is alleged and established that he is unfit, and that the welfare of the child requires its removal from such custody.1 It has been said that in the absence of a charge of unfitness a grandparent is a "third person,"2 without legal standing to demand custody.3
In the absence of any charge of unfitness or misconduct, there was plainly no basis for disturbing the father's right to custody. And, logically, the same must he said as to the claim for visitation rights.
The right of visitation derives from the right to custody. The court could not award the plaintiff visitation rights without impinging on the father's vested right of custody. And that could not be done on the basis of the barren...
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APPEAL OF H.R.
...764 (D.C. 1965) (mother prevails over married couple with whom four-year-old child had resided for over three years); Jackson v. Fitzgerald, 185 A.2d 724 (D.C. 1962) (father prevails over maternal In another relatively old case, In re Stuart, 72 App.D.C. 389, 394, 114 F.2d 825, 832 (1940), ......
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Fish v. Fish
...862 (1991) (visitation is "a limited form of custody during the time the visitation rights are being exercised"); Jackson v. Fitzgerald, 185 A.2d 724, 726 (D.C.1962) ("[t]he right of visitation derives from the right to [c]ustody"); Alison D. v. Virginia M., 77 N.Y.2d 651, 656-57, 572 N.E.2......
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Koshko v. Haining
...to an order of shared physical custody, and one having temporary custody pursuant to an award of visitation."); Jackson v. Fitzgerald, 185 A.2d 724, 726 (D.C.1962) ("The right of visitation derives from the right to custody. The court could not award the plaintiff [grandmother] visitation r......
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Mimkon v. Ford
...California (Odell v. Lutz, 78 Cal.App.2d 104, 177 P.2d 628 (Cal.Dist.Ct.App.1947)); District of Columbia (Jackson v. Fitzgerald, 185 A.2d 724 (D.C.Mun.Ct.App.1962)); Louisiana (Succession of Reiss, 46 La.Ann. 347, 15 So. 151 (La.1894)); New York (People ex rel. Sisson v. Sisson, 271 N.Y. 28......
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Money, caregiving, and kinship: should paid caregivers be allowed to obtain de facto parental status?
...e. (30.) See Ronald F.F. v. Cindy G.G., 511 N.E.2d 75, 77 (N.Y. 1987) (visitation is a limited form of custody); Jackson v. Fitzgerald, 185 A.2d 724, 726 (D.C. 1962) ("The right of visitation derives from the right to custody."); see also John Dewitt Gregory, Blood Ties: A Rationale for Chi......