People ex rel. Stockham v. Schaedel
| Decision Date | 25 October 1930 |
| Docket Number | No. 19454.,19454. |
| Citation | 173 N.E. 172,340 Ill. 560 |
| Parties | PEOPLE ex rel. STOCKHAM v. SCHAEDEL et al. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
Commissioner's Opinion.
Error to Second Branch Appellate Court, First District; on Error to Superior Court, Cook County; Joseph B. David, Judge.
Petition by the People, on the relation of Russell Stockham, for a writ of habeas corpus against May P. Schaedel and others, to secure the custody of relator's two sons from their mother. A judgment remanding the children to the custody of the mother was affirmed by the Appellate Court (250 Ill. App. 409), and relator brings certiorari.
Affirmed.Good, Childs, Bobb & Wescott, of Chicago (Walter E. Beebe, of Chicago, of counsel), for plaintiff in error.
George E. Billett, of Chicago (Elmer M. Leesman, of Chicago, of counsel), for defendants in error.
On January 21, 1928, plaintiff in error, Russell Stockham, in the name of the people, filed his petition in the superior court of Cook county for a writ of habeas corpus to secure the custody of his two sons, John, aged fourteen, and George, aged twelve, from their mother, May P. Schaedel, who was plaintiff in error's former wife. Upon a hearing the court remanded the children to the custody of their mother. The judgment was affirmed by the Appellate Court for the First District, and the case comes to this court upon a writ of certiorari.
In 1920 all of the parties lived in Ohio. A certified copy of the record of the court of common pleas of Scioto county, Ohio, was admitted in evidence. It shows that the wife filed her petition for divorce against her husband on the ground of cruelty, praying for alimony, the custody of the children, and the adjustment of certain property rights. A summons was served upon the husband. He filed his answer denying the charges in the petition. He filed a cross-petition for divorce on the ground of cruelty, praying for the custody of the children. On October 2, 1920, for reasons of public policy as stated in the decree, a decree of divorce was entered. The wife was awarded the custody of the children until the further order of the court, the husband was ordered to pay alimony, he was given the custody and control of the children at certain intervals, and the cause was continued for further orders relating to the custody and control of the children. On October 12, 1920, the father made a motion to modify the decree, and the custody of the children was given to him pending the motion. On November 4, 1920, the decree was modified, awarding the custody of the children to the father until the further order of the court. On April 16, 1921, the decree was again modified, giving the mother the custody of the children at her residence during certain hours each Saturday. On May 23, 1925, another order was entered divesting the mother of certain property and reducing her alimony. On July 21, 1925, the father was relieved of paying further alimony until the further order of the court on the ground that the mother had violated the former order of the court with reference to leaving the children in the custody of the father.
The evidence shows that after the divorce the mother moved to Chicago, where she was married to Theodore B. Schaedel, with whom she is now living. He is employed at a salary of $3,000 per year. In 1926 the father, who still lives in Ohio, was married. He is engaged in business and apparently is a man of some financial standing. The children lived with the father until just prior to the filing of the petition in this case, although on one occasion they were in Chicago and a habeas corpus proceeding was instituted to get possession of them. In September, 1927, the children left Ohio and went to Chicago. They did not have enough money to pay their railroad fares and they testified that the railroad employees let them ride without paying any fares. Upon arriving in Chicago they went to the home of their mother and later entered school. When the case was called for trial the father was not present, and he relied upon the provisions of the Ohio decree. The mother and the boys testified. The boys testified that, after their father married, their stepmother was not kind to them, that they did not want to live with her, that they preferred to live with their mother, and that they came to Chicago of their own free will and accord. The mother testified to the conditions of her home and the financial ability of herself and husband to take care of the children. The evidence of the mother and the children is uncontradicted.
It is insisted by plaintiff in error as grounds for reversal that a decree of a court of foreign jurisdiction awarding the custody of children to the husband or wife is binding upon a domestic court in the absence of changed circumstances; that the changed circumstances which justify a modification must be those which affect the welfare of the children by reason of the unfitness or inability of the person to whom the children were awarded to continue as the custodian of the children; that the mere statement by the children that they desire to live with another parent is not sufficient to justify changing their custody; that the Appellate Court in its decision overlooked the rule that the father is the natural guardian of his children and that the father's influence in preparing a boy for after life is likely to be more beneficial than that of the mother; and that the judgment of the Appellate Court is in violation of section 1 of article 4 of the Constitution of the United States, in that it fails to give full faith and credit to the judicial proceedings of the state of Ohio.
In determining the question of the custody of children where the parents have been divorced, it is uniformly held that the primary question for consideration is what is for the best interests of the child. Mahon v. People, 218 Ill. 171, 75 N. E. 768;Umlauf v. Umlauf, 128 Ill. 378, 21 N. E. 600;Hewitt v. Long, 76...
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...in a Habeas corpus proceeding to look into the question of a child's best interests before awarding custody. (People ex rel. Stockham v. Schaedel, 340 Ill. 560, 173 N.E. 172; Giacopelli v. Florence Crittenton Home, 16 Ill.2d 556, 565, 158 N.E.2d 613.) The courts of Illinois have both the re......
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Gottlieb v. Gottlieb
...is res judicata as to the facts which existed at the time it was entered but not as to facts arising thereafter. People ex rel. Stockham v. Schaedel, 340 Ill. 560, 173 N.E. 172. In proceedings involving child custody the order of the court or judge having competent jurisdiction is a final o......
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