Jamison v. Gilbert

• Decision Date: 09 September 1913
• Docket Number: Case Number: 4784
• Citation: 135 P. 342,38 Okla. 751,1913 OK 541
• Parties: JAMISON v. GILBERT et ux.
• Court: Oklahoma Supreme Court

1913 OK 541

135 P. 342

38 Okla. 751

JAMISON v. GILBERT et ux.

Case Number: 4784

Supreme Court of Oklahoma

Decided: September 9, 1913

Syllabus

¶0 1. HABEAS CORPUS--Appellate Jurisdiction--Custody of Minor. This court has jurisdiction on appeal to review an order of the district court awarding the custody of a minor child to one of the parties in a habeas corpus proceeding, brought for the purpose of determining who has the right to the custody and control of such minor.

2. SAME--Custody of Child--Unfitness of Parent. The unfitness which will deprive a parent of the right to the custody of his minor child must be positive and not comparative; and the mere fact that his minor child might be better cared for by a third person is not sufficient to deprive the parent of his right to its custody.

3. SAME. It is not sufficient, to establish the unfitness of a parent for the custody and control of his minor child, to show that he has some faults of character or bad habits; it must be shown that his condition in life or his character and habits are such that provision for the child's ordinary comfort and contentment, or for its intellectual and moral development, cannot be reasonably expected at the parent's hands.

Charles E. McPherren, Charles B. Cochran, and Charles P. Abbott, for plaintiff in error.

J. W. Clark and Gray & McVay, for defendants in error.

HAYES, C. J.

¶1 The first question presented by this proceeding is whether the order sought to be reversed is an appealable order. It has been decided several times in this jurisdiction that from an order in a habeas corpus proceeding, brought by a party imprisoned or restrained of his liberty, no appeal lies to this court. Wisener v. Burrell, 28 Okla. 546, 118 P. 999, 34 L.R.A. (N.S.) 755, Ann. Cas. 1912D, 356; Williams v. Sale et al., 33 Okla. 659, 126 P. 800; Ex parte Johnson, 1 Okla. Crim. 414, 98 P. 461. In adopting the rule announced in the foregoing cases, the court recognized the sharp conflict among the authorities upon the question, but adopted the rule that in a proceeding for habeas corpus, brought by a person to release him from restraint, where he is held under some purported criminal charge, the order of the court releasing or remanding the prisoner is not such an order as to constitute a final order from which an appeal may be taken under statutes similar to the one in this jurisdiction, granting appeals from the final order or judgment in a cause. The rule adopted by this court in those cases is based upon the reason that in such proceedings for habeas corpus, a decision therein is not res adjudicata; but an examination of the authorities convinces us that the weight of authority holds that there is a distinction between a habeas corpus proceeding brought to secure the release of a person from restraint and a similar proceeding instituted to determine the right to the custody of children. In the former class of cases, a decision on one writ is not a bar to the issuance of and proceedings upon a second writ; but an order in a proceeding to determine the right to the custody of a child, where the facts in the proceeding are the same as the first, is res adjudicata. The rule has been stated by one court as follows:

"In a proceeding for habeas corpus, where controversy arises over the custody of a child, the real issue is one between private parties, contesting the question of private rights, in which there arises no question of a personal liberty, and in consequence all matters in issue arising upon the same state of facts determined in a prior proceeding, should be regarded as settled and concluded. However, where many facts appear to be presented by the record which may not have been presented to the judge at the former hearing, and where possibly other facts have occurred since the former hearing, this court will examine the entire matter." (In re Hamilton, 66 Kan. 754, 71 P. 817; Bleakley v. Barclay, 75 Kan. 462, 89 P. 906, 10 L.R.A. [N.S.] 230.)

¶2 It follows as a result of such a rule that since the judgment rendered upon the facts existing at the time of the trial is binding and conclusive and bars a subsequent proCeeding by the parties thereto upon the same facts, the order made thereon is a final order, so far as the facts existing at the time of the institution of the case and trial are involved; and such an order is final, within the meaning of the statutes, for the purpose of review. Bleakley v. Smart, 74 Kan. 476, 87 P. 76, 11 Ann. Cas. 125; Cormack v. Marshall, 211 Ill. 519, 71 N.E. 1077, 67 L.R.A. 787, 1 Ann. Cas. 256; Hall v. Whipple (Tex. Civ. App.) 145 S.W. 308. The grounds upon which a reversal of the judgment of the trial court is urged are that the judgment is not supported by the evidence and is contrary to the law. If the trial court meant by finding that plaintiff in error had given his child to the defendants in error to find thereby that he contracted with them to surrender or transfer the custody or control of his child to them permanently, we think there is merit in the contention that the finding of the trial court is not supported by the evidence. There is by no means harmony among the authorities as to whether such a contract is valid. Many of the courts declare such contract void as being against public policy. That question is not presented here. In those jurisdictions where such contracts are sustained, the rule is that a parent will not be held to have surrendered the custody and control of his child permanently to a stranger, unless it clearly appears that such was his intention; and it Will be presumed that the surrender of the custody of the child by his parent is intended to be temporary, unless the contrary clearly appears. 29 Cyc. 1593. It is not sufficient that the person having temporary custody of the child understood that the parent had granted to him permanent custody; but it must be clear that there was a corresponding understanding on the part of the parent. Miller v. Miller, 123 Iowa 165, 98 N.W. 631. The evidence in this case establishes that plaintiff in error's first wife died when the child in controversy was about eight months old; that he also had another child by his deceased wife, about three years old. After the death of the mother of said children, they were kept by the mother of plaintiff in error in Texas, and cared for for a period of about one year, after which time the plaintiff in error's mother became so weak that she was unable to care for the children, and they were returned to plaintiff in error. Upon the advice of plaintiff in error's mother, and with the consent of defendants in error, the younger child was left with defendants in error to care for. At the time he was turned over to them by plaintiff in error, he stated that he could not care for it, and asked them to raise the child. Plaintiff in error lived 30 or 40 miles from the residence of defendants in error. He visited the child while it was with its grandparents once or twice a year, and during the time it was with them contributed about $ 12 toward its support. The remainder of the expenses of its support was paid for by the grandparents. Some few months after the second marriage of plaintiff in error, he went after the child and took it to his home, where it was kept for a time, and thereupon was permitted to visit its grandparents, the defendants in error. When plaintiff in error went to get the child at the end of this visit, the grandparents refused to permit him to take it and ordered him out of the house. He thereafter secretly obtained possession of the child and carried it to his home, where it remained for some time. He again consented to its visiting its grandparents, upon the assurance that the child would be permitted to return to its home, and the child was so permitted to return, where, after a time, it was again permitted to visit the grandparents, who have since said time refused to surrender it to plaintiff in error. The foregoing constitutes in substance all the evidence relative to any contract on the part of the father surrendering the permanent custody and control of the child; and, in our opinion, it falls short of establishing clearly any agreement on his part that the grandparents should have the permanent custody of it. The trial court seems to have been controlled in his judgment principally by the impression that the child should be awarded to the party who was most able to provide for and care for it. A general rule of law, often stated in the cases, is that the welfare of the child is the paramount consideration in determining who shall have its possession; but this broad statement usually occurs in cases where the controversy is between the mother and the father, and frequently in cases where the right of the parents against each other have been by statute made equal, and the custody of the children is to be determined according to the exigencies of the particular case, without regard to the superior right of either parent. The rule of law, we think, applicable to this case is stated in 29 Cyc. 1590 in the following language:

"A parent who is of good character and a proper person to have the custody of the child, and reasonably able to provide for it, is entitled to the custody as against other persons, although such others are much attached to the child, and the child is attached to them, and prefers to remain with them, and they

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