Kissinger v. Shoemaker
| Decision Date | 31 August 1981 |
| Docket Number | No. 3-381A63,3-381A63 |
| Citation | 425 N.E.2d 208 |
| Parties | Vern KISSINGER, Jr., Appellant (Plaintiff Below), v. Paul SHOEMAKER, Appellee (Defendant Below). |
| Court | Indiana Appellate Court |
James O. Wells, Jr., Rochester, for appellant.
William H. Deniston, Ted A. Waggoner, Rochester, for appellee.
This is an appeal from a denial of a petition for a writ of habeas corpus filed by a natural father for the return of his children who were being detained by their stepfather.
The marriage of Vern Kissinger, Jr. and Virginia Kissinger was dissolved September 4, 1979. The three minor children born of their marriage were placed in the custody of Virginia. Virginia married Paul Shoemaker on July 5, 1980, and twelve days later, on July 17, 1980, she met an untimely death in a tractor accident.
On August 6, 1980 Vern Kissinger filed his petition for a writ of habeas corpus which was heard on August 8, 1980. Originally the action was filed under the cause number of the Kissinger dissolution. At approximately the same time, Paul Shoemaker filed a petition for temporary and permanent custody of the children under the same cause number. At the hearing, it was determined that Kissinger's petition should be filed under a separate cause number and such action was taken at that time. Since the defendant's attorney was unaware that the trial court intended to hear both petitions on that day and was only prepared to respond to the habeas corpus petition, the causes were separated and the trial court proceeded to hear evidence on Kissinger's petition for a writ of habeas corpus only. Kissinger's petition was denied by the trial court on September 18, 1980 and Kissinger appealed.
The issue Kissinger raises on appeal is whether the trial court erred in denying his petition for a writ of habeas corpus. Kissinger contends that when a parent, who is granted custody of the children in a dissolution decree, dies, custody of the children automatically inures to the surviving parent.
As authority for his position, Kissinger cites State ex rel. Gregory v. Superior Court etc. (1961), 242 Ind. 42, 176 N.E.2d 126 and In re Guardianship of Phillips (1978), Ind.App., 383 N.E.2d 1056. It should be noted that Phillips dealt with a petition for guardianship and was not a habeas corpus action. In both cases cited by Kissinger the surviving parent was granted custody of the minor children.
However, both Gregory and Phillips also hasten to point out that the surviving parent prevailed in the absence of any showing that they were unsuitable to be entrusted with the children.
The evidence in the case at hand leads us to a different conclusion. The disposition of children is not controlled by hard and fast rules of law, but by the sound judicial discretion of the trial court, and the review by an appellate court is limited to the question of abuse of judicial discretion. Gilchrist v. Gilchrist (1947), 225 Ind. 367, 75 N.E.2d 417. No such abuse has been shown here.
Ordinarily, a parent is entitled to the custody of his or her child against third parties. However, the rights of parents are not absolute and must yield to the welfare and best interest of the child. Gilchrist, supra.
The reasoning set forth in the case of Hendrickson v. Binkley (1974), 161 Ind.App. 388, 316 N.E.2d 376, cert. denied 423 U.S. 868, 96 S.Ct. 131, 46 L.Ed.2d 98, seems applicable to the cause before us. Hendrickson involved a habeas corpus proceeding wherein a father sought to recover custody of his child over the maternal grandparent. The trial court entered a judgment in favor of the grandparent and the father appealed. This Court held that although the child had been awarded to his mother at the time of divorce, where the child had not been voluntarily relinquished to others, and the evidence did not disclose unfitness, long acquiescence or voluntary relinquishment by the father, the presumption that it was in the best interests of the child to be placed in the custody of the surviving parent was not rebutted, and the father was entitled to custody over the maternal grandparent. While Hendrickson dealt with both the habeas corpus issue and the issue of custody, it is still...
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