Root v. Allen, No. 19750

Docket NºNo. 19750
Citation151 Colo. 311, 377 P.2d 117
Case DateDecember 24, 1962
CourtSupreme Court of Colorado

Page 117

377 P.2d 117
151 Colo. 311
William B. ROOT, Plaintiff in Error,
v.
Robert E. ALLEN, Defendant in Error.
No. 19750.
Supreme Court of Colorado, En Banc.
Dec. 24, 1962.

Page 118

Donald W. Marshall, Denver, for plaintiff in error.

Phillip Hornbein, Jr., H. Ted Rubin, S. Morris Lubow, Denver, for defendant in error.

[151 Colo. 312] DAY, Chief Justice.

Plaintiff in error William B. Root filed a petition for habeas corpus in the Denver District Court to obtain the custody of his daughter Sharon Ann. He will be hereinafter referred to by name or as the father. The defendant in error was the respondent in the lower court and will be referred to by name.

The father in his petition alleged the birth of the child to himself and his then wife Rachel Root on October 21, 1949. Other allegations, all admitted by Allen, are that Mr. and Mrs. Root were divorced in Kansas in 1950 and by agreement custody of Sharon was given to the mother subject to the father's visitation rights. The father agreed to pay $50.00 monthly for child support and at all times from the divorce until the death of the mother in January, 1958, made his payments. In February, 1953, Mrs. Root moved to Colorado where she married Allen and remained here with him until her death. The father has been a resident of California since 1956. When the child's mother died in 1958 Allen informed the father and requested his consent to the adoption of the child, which the father declined. The father requested Allen to relinquish the child back to him, which Allen declined to do, hence the petition by the father to obtain the child.

After hearing the trial court rendered exhaustive findings in which it concluded that it was for the best interests of the child that Sharon Ann remain in the custody of Allen. Petition for habeas corpus was denied, new trial was dispensed with, and it is to that judgment that the father brings this writ of error.

The findings of the trial court pretty much give the picture between the time of the divorce in 1950 up to [151 Colo. 313] the hearing for custody. We can do no better than to relate the court's findings here as follows:

'1. * * * when Sharon was approximately ten months of age, she returned with her mother, Rachel, to Denver, Colorado; that from June, 1950, until the summer of 1956, she did not see her father, William Root.

'2. That in November, 1950, Robert Allen began dating the mother, Rachel, and began spending considerable time with Sharon; that from November, 1950, until February, 1953, Robert Allen regularly saw Sharon, and on February 20, 1953, he married Rachel, the child's mother; that from that date to the present Sharon has lived in the home of Robert Allen with the exception of the period July, 1956, to May, 1957; that on November 3, 1953, a half-sister of Sharon's, Vicki, was born to Robert and Rachel Allen; that on May 18, 1955, another half-sister of Sharon's, Kay, was born to Robert and Rachel Allen; that in the summer of 1956, William Root, the father visited Sharon in Denver for a period of no more than one and one-half hours, at which time he introduced himself to Sharon as a friend of the family; that Sharon did not see William Root again until the summer of 1960 after this litigation had been initiated and Mr. Root was in Denver for a hearing.

Page 119

'3. That over the years Mr. Root in general neither wrote to nor sent birthday or Christmas gifts to Sharon; that from July, 1956 to May, 1957, Robert and Rachel Allen were separated, during which time Robert Allen visited his children including Sharon at least two to three times each week; that in May, 1957, Robert and Rachel Allen reconciled; that on January 25, 1958, Rachel Allen died; that from January 25, 1958 until the remarriage of Robert Allen on June 21, 1959, Mr. Allen maintained a home for Sharon and her two half-sisters with the help of housekeepers; that on June 21, 1959 Robert Allen married his present wife, Jerry; that in March, 1960, Jerry Allen adopted Vicki and Kay Allen; that since the end of 1950 to date Shron has had a [151 Colo. 314] close and warm relationship with Robert Allen, who has acted in every sense as her father; that Mr. Root has remarried and has two sons, one of whom he adopted and now seeks the return of Sharon's care and custody; that Mr. Root now lives in California; that Robert and Jerry Allen seek to continue to care for Sharon.

'4. That even though the petitioner herein contributed $50.00 per month to the support of Sharon Ann in compliance with a court order, nevertheless, in every other way, he abandoned his obligations as father of this child. Even if he did so in the belief that it was for the best interests of the child, as he claims, nevertheless by so doing, he permitted her to develop an entirely new father daughter relationship with the respondent, Robert Allen, which cannot now be destroyed without great harm resulting to the child.

'5. That if she were to return to Mr. Root, if she were to leave the father with whom she has lived for these years, the effect would be very damaging. The natural ties between parents and children do not endure unless they are nurtured. It is unmistakably important that children have a sense of continuity, or otherwise stated, that they are unable to avoid the damages which result from serious separations. This need that a child has for continuity, the...

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23 practice notes
  • Doe v. Mitchell, No. 1
    • United States
    • Supreme Court of Michigan
    • August 25, 1976
    ...and applied in all of these cases, and confirmed in the Wilson case, is the welfare of the child. . . .' Again in Root v. Allen, 151 Colo. 311, 316, 318, 377 P.2d 117, 120 (1962), the same Court awarded custody to a stepfather over the claims of the father. The following question was answer......
  • Custody of C.C.R.S., In re, No. 92CA1142
    • United States
    • Colorado Court of Appeals of Colorado
    • November 18, 1993
    ...Colorado prior to the adoption of the Dissolution Act in 1971. See Rippere v. Rippere, 157 Colo. 29, 400 P.2d 920 (1965); Root v. Allen, 151 Colo. 311, 377 P.2d 117 (1962); Walcott v. Walcott, 139 Colo. 37, 336 P.2d 298 In 1971, the Colorado General Assembly adopted a provision governing cu......
  • Halstead v. Halstead, No. 52129
    • United States
    • United States State Supreme Court of Iowa
    • September 20, 1966
    ...by the following decisions: Armstrong v. Green, 260 Ala. 39, 68 So.2d 834; Henry v. Janes, 222 Ark. 89, 257 S.W.2d 285; Root v. Allen, 151 Colo. 311, 377 P.2d 117; Baram v. Schwartz, 151 Conn. 315, 197 A.2d 334; Hitchcock v. Thomason, Mun.Ct. of Appeals for D.C., 148 A.2d 458; Fielding v. H......
  • Guardianship of Williams, Matter of, No. 69506
    • United States
    • United States State Supreme Court of Kansas
    • March 4, 1994
    ...628 (Ala.1986); Buness v. Gillen, 781 P.2d 985 (Alaska 1989); Schuh v. Roberson, 302 Ark. 305, 788 S.W.2d 740 (1990); Root v. Allen, 151 Colo. 311, 377 P.2d 117 (1962); In re R.L.L. and J.M.L., 258 Ga. 628, 373 S.E.2d 363 (1988); Stockwell v. Stockwell, 116 Idaho 297, 775 P.2d 611 (1989); I......
  • Request a trial to view additional results
23 cases
  • Doe v. Mitchell, No. 1
    • United States
    • Supreme Court of Michigan
    • August 25, 1976
    ...and applied in all of these cases, and confirmed in the Wilson case, is the welfare of the child. . . .' Again in Root v. Allen, 151 Colo. 311, 316, 318, 377 P.2d 117, 120 (1962), the same Court awarded custody to a stepfather over the claims of the father. The following question was answer......
  • Custody of C.C.R.S., In re, No. 92CA1142
    • United States
    • Colorado Court of Appeals of Colorado
    • November 18, 1993
    ...Colorado prior to the adoption of the Dissolution Act in 1971. See Rippere v. Rippere, 157 Colo. 29, 400 P.2d 920 (1965); Root v. Allen, 151 Colo. 311, 377 P.2d 117 (1962); Walcott v. Walcott, 139 Colo. 37, 336 P.2d 298 In 1971, the Colorado General Assembly adopted a provision governing cu......
  • Halstead v. Halstead, No. 52129
    • United States
    • United States State Supreme Court of Iowa
    • September 20, 1966
    ...by the following decisions: Armstrong v. Green, 260 Ala. 39, 68 So.2d 834; Henry v. Janes, 222 Ark. 89, 257 S.W.2d 285; Root v. Allen, 151 Colo. 311, 377 P.2d 117; Baram v. Schwartz, 151 Conn. 315, 197 A.2d 334; Hitchcock v. Thomason, Mun.Ct. of Appeals for D.C., 148 A.2d 458; Fielding v. H......
  • Guardianship of Williams, Matter of, No. 69506
    • United States
    • United States State Supreme Court of Kansas
    • March 4, 1994
    ...628 (Ala.1986); Buness v. Gillen, 781 P.2d 985 (Alaska 1989); Schuh v. Roberson, 302 Ark. 305, 788 S.W.2d 740 (1990); Root v. Allen, 151 Colo. 311, 377 P.2d 117 (1962); In re R.L.L. and J.M.L., 258 Ga. 628, 373 S.E.2d 363 (1988); Stockwell v. Stockwell, 116 Idaho 297, 775 P.2d 611 (1989); I......
  • Request a trial to view additional results

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