Root v. Allen, 19750

• Decision Date: 24 December 1962
• Docket Number: No. 19750,19750
• Parties: William B. ROOT, Plaintiff in Error, v. Robert E. ALLEN, Defendant in Error.
• Court: Colorado Supreme Court

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.

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

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

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 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.

'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 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 need to avoid separation, is particularly marked at certain times in life. This child is now approaching puberty, and at this time in particular even more than at other times--although at all times the need is there--she very definitely needs the sense of emotional support which comes from a continuous relationship with mother, father and siblings.

'6. That the child herein involved has been subjected to a series of traumatic experiences during her lifetime, including the death of her mother; that throughout all these experiences, the one great stabilizing factor in her life was the relationship with her stepfather, Robert Allen. Some of the testimony reveals he is closer to her, more attentive to her needs than even her mother was. To uproot this child, who has already suffered so much, from her home, her relatives, and from the only stable relationship she has ever known is unthinkable and not in the best interest of the child involved as amply born out by the testimony of expert witnesses; that the respondent, Robert Allen unquestionably stands in the relationship of loco-parentis to this child, a relationship in which the law wisely takes cognizance of situations such as this.

'7. The Court finds that the petitioner and natural father herein has an adequate and highly desirable home in California, but the Court is further compelled to find that in the background of this home there are already existing problems which it seems to the Court are enough to expect Mr. Root and his family to deal with and to complicate such problems and relationships by introducing the child herein involved into the said home would probably not be in the best interest of said child.

'8. The Court is of the opinion that the petitioner has acted herein out of his sense of love and duty; however, the past cannot be undone. It would seem to the Court that after so many years it would have been much wiser for the petitioner herein to have made the greater sacrifice by continuing to keep his identity unknown until this little girl were old enough to withstand this further shock. Now that she knows, it would seem to the Court wise that this relationship be nurtured by correspondence and such visitations as the parties may agree upon in their good judgment. Much as the Court sympathizes with the natural father and his present wife, the Court is compelled to find that to grant the relief requested herein would be calamitous for Sharon Ann and that her best interest realistically appraised absolutely requires the petition be denied. The Court finds from the evidence that there is no mystical blood tie that is of more importance than...