Parks v. Crowley

• Decision Date: 15 December 1952
• Docket Number: No. 4-9932,4-9932
• Citation: 253 S.W.2d 561,221 Ark. 340
• Parties: PARKS v. CROWLEY et ux.
• Court: Arkansas Supreme Court

Page 561

253 S.W.2d 561

221 Ark. 340

PARKS v. CROWLEY et ux.

No. 4-9932.

Supreme Court of Arkansas.

Dec. 15, 1952.

Dissenting Opinion Jan. 12, 1953.

Rehearing Denied Jan. 19, 1953.

Ward, Coleman & Mayes, Paragould, for appellant.

Kirsch & Cathey and Gerald Brown, Paragould, for appellees.

HOLT, Justice.

This suit involves the custody of Pamela Crowley, a little girl about five and one-half years of age at the time of the trial. Appellant, Frances Parks (formerly Frances Crowley) is the natural mother of the child and appellees are its paternal grandparents. Jack Crowley, the child's father, is not a party to this action. According to this record, he has never shown the slightest interest in Pamela and has never provided a home or any support for her. In fact, it clearly appears that he has, in general, proven a great disappointment to his parents (appellees) who reared him. On February 28, 1949, Frances married Parks and they now have a son two years of age. The record discloses than on September 4, 1946, Jack Crowley secured a Florida divorce from Frances and seven days later, she gave birth to Pamela. Shortly thereafter, Frances took her baby to the home of her parents in Paragould and later secured employment to support herself and child. During this period, Frances had allowed the child to stay in the home of its paternal grandparents (appellees) a greater part of the time. Appellees are good people and their affection for the child and desire to care for it are not questioned. This arrangement continued until January 23, 1951 when appellees, feeling that the conduct of Frances and her mother was so bad that the child's welfare, while with Frances in her mother's home, was endangered, decided to keep the child permanently in their own home, and refused to allow Frances to have her at all. Thereupon, appellant, Frances, filed suit for Pamela's custody. A hearing resulted in a decree for appellees on findings that while Frances was not guilty of immoral conduct, she was addicted to drink and frequent profanity to such an extent as to make her unfit to have the custody of the child. She was allowed, however, to visit the child at all reasonable times.

The present suit was filed by Frances November 13, 1951, seeking a modification of the above decree of July 23, 1951, on the grounds of such changed conditions since its rendition that would warrant transfer of custody to appellant. Trial was had February 6, 1952 and the court, after a patient and painstaking hearing, declined to disturb the child's custody and this appeal followed.

We try the case de novo here.

In determining the custody of a minor child or the modification of an award of custody thereafter, the welfare of the child is the controlling consideration. In such cases, unfortunately we have no definite yardstick as a guide. Each case must stand on its own facts. Here, while the trial court has continuing authority to alter its orders affecting custody and control of this minor child, such order should not be changed 'without proof showing a change in circumstances from those existing at the time of the original order, which changed circumstances, when considered from the standpoint of the child's welfare, are such as to require or justify the transfer of custody from one parent to the other.' Myers v. Myers, 207 Ark. 169, 179 S.W.2d 865, 866.

The burden is on appellant who is seeking the modification.

In this connection, we have certain definite and approved general rules to govern us in reaching a decision.

'The paramount consideration in this case, as in all other cases involving the custody of a minor child, is the welfare of the child, but the rights and feelings of the parents must also be weighed and due regard given to the natural desire of the parents to have and rear their offspring.' French v. Graves, 205 Ark. 409, 168 S.W.2d 1108, 1109.

In Servaes v. Bryant, Ark., 250 S.W.2d 134, 135, we said: "There can be no question in the law that, as between a mother and grandparents, the mother is entitled to the custody of her child, 'unless incompetent or unfit, because of poverty or depravity, to provide the physical comforts and moral training essential to the life and well-being of her child,' Washaw v. Gimble, 50 Ark. 351, 7 S.W. 389; Baker v. Druham [Durham], 95 Ark. 335 , 129 S.W. 789.' Loewe v. Shook, 171 Ark. 475, 284 S.W.2d 726, 727.

"The law recognizes the preferential rights of parents to their children over relatives and strangers, and, where not detrimental to the welfare of the children, they are paramount, and will be respected, unless special circumstances demand that such rights be ignored. [Citing several cases.]" And in Holmes v. Coleman, 195 Ark. 196, 111 S.W.2d 474, 476, this court said: 'Courts are very reluctant to take from the natural parents the custody of their child, and will not do so unless the parents have manifested such indifference to its welfare as indicates a lack of intention to discharge the duties imposed by the laws of nature and of the State to their offspring suitable to their station in life.'

In considering this case, we do not lose sight of the fact that we are dealing with the welfare of a little girl of the tender age of five years when obviously she is most in need of the loving care of her real mother unless the mother is so depraved morally or otherwise as would render her unfit to have her child. While appellees have had her custody for most of her life, however, when the real mother shows that she is entitled to its custody, we must know, human nature being what it is, that the love and attachment of this little girl for her grandparents (appellees) cannot have become so deep rooted and attached that it could not, within a very short time, be transferred to her real mother by proper treatment, love and care, if given the opportunity. Appellees concede that Parks, the stepfather, is a good man and have found no fault with him. He works regularly, earning from $40 to $50 per week, and is willing to provide an ample, though modest home. He wants the child and is willing to support her. The evidence on which the...