Mawhinney v. Mawhinney, 8
| Decision Date | 05 February 1975 |
| Docket Number | No. 8,8 |
| Citation | 66 Wis.2d 679,225 N.W.2d 501 |
| Parties | Alice Edith MAWHINNEY, Plaintiff, Allen Henry LaChapell et al., Intervenor-Plaintiffs-Appellants, v. William Courtney MAWHINNEY, Respondent. |
| Court | Wisconsin Supreme Court |
Hansen, Eggers, Berries & Kelley, S.C., Beloit, for Allen and Harriet LaChapell.
Murphy, Rude & Forrestal, Patrick J. Rude, Janesville, for respondent.
Two issues are presented on this appeal:
1. In child custody cases involving a dispute between a surviving spouse and the maternal grandparents, is the doctrine of the best interests of the child an element to be considered in awarding custody?
2. Should a guardian ad litem have been appointed for the two children?
In determining that custody of the two children here should be granted to William Mawhinney, the trial court felt that under Ponsford v. Crute (1972), 56 Wis.2d 407, 202 N.W.2d 5, it had no choice but to award custody to the surviving natural parent unless it could find him to be unfit or unable to care for the children. We do not agree. The conclusion reached by this court in Ponsford should not be interpreted as laying down an inflexible rule, that in every case involving a dispute between the natural father or mother and grandparents for the custody of the children, the doctrine of the best interests of the children cannot prevail. As a general matter, but not invariably, the child's best interest will be served by living in a parent's home. However, if circumstances compel a contrary conclusion, the interests of the child, not a supposed right of even a fit parent to have custody, should control. There well may be cases where it would be detrimental to the best interests of the child to award custody to a surviving spouse.
The trial court in making his decision stated that the fact situation in the present case is 'almost exactly the same situation as in the case of Ponsford v. Crute.' We think there is a substantial difference in the factual situation of the cases. Ponsford involved the custody of a four year old child. In an earlier action, after the mother died, the father sought custody of the child. Custody was denied primarily because the child was two years old and the father was in the military service. The court found under the circumstances the father could not adequately care for the child.
In the later action which was considered on appeal to this court, it was established that the father had remarried, that he was released from military service and had obtained a good job. Under the circumstances in Ponsford there was no question as to where the best interests of the child lay.
In the instant case we are concerned with the custody of children approximately thirteen and ten years old. The children hardly know the father. Between the time of divorce in 1965 and Alice Mawhinney's death in 1973, a period of eight years, the father only visited his children twice. Here the trial court made findings that prior to the death of Alice Nawhinney, the father had abandoned the children, that he had failed to provide necessities for them, that he had failed to display any interest whatsoever in the children and had illicitly lived with a woman he has since married. Here the children have expressed a desire to remain with the grandparents.
Under the facts and circumstances of this case we think the trial court was in error in not considering the best interests of the children in awarding custody. We, therefore, determine that the cause must be remanded and that the trial court should consider anew where the best interests of the children lie.
No guardian ad litem was appointed for the two children involved in this custody matter. Sec. 247.045, Stats., provides in part:
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