Ponsford v. Crute
| Decision Date | 28 November 1972 |
| Docket Number | No. 268,268 |
| Parties | Dale R. PONSFORD, Respondent, v. Clarence CRUTE et al., Appellants. |
| Court | Wisconsin Supreme Court |
O'Melia, Kaye & Melby, Rhinelander, for appellant.
Albert J. Cirilli, Rhinelander, for respondent.
From the record and the arguments before us, we deem the issues to be:
1. In child custody cases does the doctrine of the best interests of the child prevail over the right of a parent to the custody of the child?
2. Was there sufficient credible evidence to support the finding that the father is a fit and proper person to have the care and custody of his minor child?
3. Did the trial court have legal authority to grant visitation rights to the grandparents?
4. Was it an abuse of discretion to order the plaintiff-father to bear the entire cost of the guardian and condition custody upon the payment of this fee?
Counsel for the grandparents contends that in all child custody cases the polestar consideration is the best interests of the child and that the trial court did not recognize the dominance of this rule. 1 In most custody cases the finding as to the best interests of the child determines the issue and in all cases it is a proper consideration. Certainly the best interests of the child is the controlling consideration in a contest for custody between the parents of the child. Here, as is apparent, the dispute is between the natural father and the maternal grandparents.
Aside from the sociological and natural right of a parent to keep his child as against all others, the legislature, in ch. 247, Stats., has set standards that must be applied in divorce, separation and custody cases. 2
Sec. 247.24, Stats., states:
We believe the court has answered the contention of the grandparents in Sommers v. Sommers (1966), 33 Wis.2d 22, 26, 146 N.W.2d 428, 430:
'As a consequence, before a trial court can deprive the natural parents of custody, there must be findings supported by the evidence sufficient to show that both natural parents are either unfit or unable to adequately care for the children.'
From the statute 3 and this court's construction of it in Sommers v. Sommers, supra, as between Dale, the natural father, and the Crutes, the maternal grandparents, Dale cannot be deprived of the custody of his minor child unless there is a finding that either he is unfit or is unable to care for the child. The court affirmatively found that as of the time of the trial in this case Dale was fit to have the child and that he was able to adequately take care of her. Under these findings the trial court was obligated to award the custody of Kim to the father, Dale.
The appellants-grandparents also contend that the evidence is not sufficient to support the finding that Dale was fit.
At the time that Dale and Linda separated in 1966, and at the time of the habeas corpus hearing in 1968, a finding of unfitness and inability to adequately care for the minor child, in all probability, could be sustained. His association with Sandra was grossly improper, a violation of marriage vows, and a strong indication of his lack of moral responsibility to his child. Further, in 1968 he was in military service with no physical facilities to adequately care for the child.
In 1971, at the time of the hearing in this matter, Dale's pattern of living had changed substantially. He was married to Sandra and living with her in an entirely proper manner. There was nothing about the conduct of Dale and Sandra after their marriage that would require a finding of unfitness on the part of Dale. They live in a small Ohio town in a rented house with adequate room and facilities. Dale has a good job that provides 'take home pay' of about $275 every two weeks. He has completed high school by correspondence, and both Sandra and Dale have joined an established church. There are two children in the house--Stephen, whom Dale has adopted, and another child born after the marriage of Dale and Sandra. Sandra does not have outside work and stays home to care for the children and the house. At the trial she indicated a desire to have Kim in their home. This evidence amply supports the finding of fitness and ability to adequately care for the child.
The appellants contend all of Dale's testimony should be rejected because of variances in his testimony at this trial and the habeas corpus hearing. The appellants urged the trial court to invoke the rule of falsus in uno, falsus in omnibus. The rule is not one of law in the sense that it must be invoked so as to strike all the testimony of a...
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