Stafford v. Goode
| Decision Date | 09 May 1964 |
| Docket Number | No. 43694,43694 |
| Citation | 193 Kan. 120,392 P.2d 140 |
| Parties | In the Matter of the Application of Eleanor Miller Stafford for a Writ of Habeas Corpus. Eleanor Miller STAFFORD, Apellant, v. Walton GOODE and Eunice A. Goode, Appellees. |
| Court | Kansas Supreme Court |
Syllabus by the Court.
1. A natural parent will not be deprived of the custody of its child in the absence of clear and convincing evidence of unfitness.
2. In a habeas corpus proceeding by a mother to recover custody of her child from its maternal grandparents, where her right to custody is challenged on the grounds of her unfitness, a finding of unfitness by the trial court based on competent substantial evidence will not be disturbed on appeal.
3. In a child custody proceeding the testimony of medical witnesses is examined and held to constitute competent and substantial evidence of the mother's unfitness to have custody of the child.
George A. Robb, Newton, argued the cause and was on the briefs for the appellant.
Kenneth G. Speir, Newton, argued the cause, and Vernon A. Stroberg; Herbert H. Sizemore; and Richard F. Hrdlicka, Newton, were with him on the briefs for the appellee.
This was an action in habeas corpus to determine the right to custody of an eight-year-old boy.
The pleadings reflect the respective positions of the parties and will be briefly noted.
Plaintiff, hereinafter referred to as petitioner, commenced the action by filing a petition, material allegations of which read:
'Comes Now Eleanor Miller Stafford and shows to the Court:
'That she is a resident of * * * Hollywood, California.
'That she is the mother and natural guardian of David Alexander Miller, a minor, who was born on October 8, 1954.
'That Walton Goode and Eunice A. Goode, husband and wife, whose residence and address is Halstead, Harvey County, Kansas, are the parents of this petitioner, and, therefore, are the grandparents of said minor child, * * *
* * *
* * *
* * *
'That said restraint is illegal in that, as mother and natural guardian of said minor child, petitioner is entitled to the custody and control of said child, and there is no judgment, order or decree of any court depriving petitioner of her natural and legal right of custody or awarding such custody to Walton Goode and Eunice A. Goode, either or both of them.
'Wherefore, petitioner prays that * * * an order be entered herein taking David Alexander Miller from the custody and control of Walton Goode and Eunice A. Goode and delivering him to the custody and control of this petitioner, * * *' (Emphasis supplied.)
In due time the defendants, Walton Goode and Eunice A. Goode, who will be referred to as respondents, filed their answer to the petition. Pertinent portions of that pleading read:
'These respondents admit that they have, and have had since infancy, the custody and control of David Alexander Miller by and with the consent and solicitation of the mother and father of said child. * * *
'That at all times since the birth of of the said David * * *, these respondents, * * * have paid all bills and provided all of the maintenance of and for the said David * * *, and that neither parent has ever contributed or offered to contribute to the support, maintenance, and walfare of said child.
'That * * * Eleanor Miller Stafford, the natural mother of the said David * * * a minor, is not now and never has been and will not be a fit or proper person to have the care, custody and control of the said David * * *.
'That these respondents, * * * allege and state * * * that the best interests of the said David * * * demand and require that these respondents, or some other suitable person, have the care, custody, and control of the said David. * * *
'Wherefore, * * * respondents respectfully pray that the said Petition be denied, * * * and that these respondents be adjudged and decreed the care, custody, and control of the said David Alexander Miller, * * *' (Emphasis supplied.)
Petitioner's response to the foregoing answer was in the form of a general denial.
After joinder of issues as indicated the case came on for trial. Petitioner adduced her evidence. Respondents adduced their evidence. Petitioner then demurred to respondents' evidence on the ground it failed to prove any of the defenses alleged in the answer. This demurrer was overruled. Following this ruling petitioner did not see fit to offer any rebuttal evidence to refute testimony offered by respondents, and admitted by the trial court, in support of their position petitioner was not a fit and proper person to have the care, custody and control of the involved minor because of an existing mental disorder.
At this stage of the proceeding it was agreed between court and counsel that counsel could submit law citations to the court and be heard in argument at a later date. On the date fixed counsel appeared and argued the cause. Following arguments the court announced its decision which, according to the trial court's journal entry of judgment, reads:
'* * * the Court, having heard and considered the evidence and the arguments of counsel, having examined the exhibits and the files herein, and being fully advised in the premises, and having given full consideration and weight to the presumption in favor of the natural parent with respect to the custody of the said David Alexander Miller, finds that the petitioner, Eleanor Miller Stafford, the natural parent of the said David Alexander Miller, is not a fit person to have the care, custody, and control of the child, the said David Alexander Miller, and further finds that the respondents, Walton Goode and Eunice A. Goode, are fit, suitable, and proper persons to have the care, custody, and control of the said David Alexander Miller.'
and then rendered judgment in accord with such decision.
After rendition of the judgment and the overruling of her motion for a new trial petitioner perfected the instant appeal wherein, under proper specifications of error, she is now entitled to appellate review of issues to which we shall presently refer.
The appellate questions involved will be simplified by further reference to the pleadings. It may be stated that an examination of the record discloses that unemphasized factual averments of both the petition and the answer, as quoted, are not in dispute that all quoted allegations of the petition and the answer, both factual and in the nature of conclusions, which we have underlined for purposes of emphasis, are in controversy; and that the prayer of the respective pleadings discloses the position of each party on the conceded, as well as the controverted, facts. Thus it appears the case was tried in the court below wholly upon issues as to whether the petitioner, as the natural parent, was entitled to the custody of the child or whether the respondent grandparents were entitled to his custody because the petitioner was not then a fit or proper person to have his care, custody and control.
The record makes it clear that during the course of the trial the lower court was fully cognizant of well-established rules of this court, to which we now refer.
See Christlieb v. Christlieb, 179 Kan. 408, 295 P.2d 658, where it is said:
The numerous decisions cited in Christlieb, in support of the rule just quoted, are made a part of this opinion by reference.
See, also, In re Vallimont, 182 Kan. 334, 321 P.2d 190, which holds:
'A parent who is able to care for his children and desires to do so, and who has not been found to be an unfit person to have their custody in an action or proceeding where that question is in issue, is entitled to custody as against grandparents or others who have no permanent or legal right to custody.' (Syl. p1.)
At the commencement of the trial petitioner testified as a witness in her own behalf and offered no further testimony. The trial court then caused the respondents to proceed with the introduction of their evidence. This procedure conforms with action approved by this court in In re Vallimont, supra, where it is said:
'At the close of the petitioner's evidence it was determined by the trial court, without objection by the parties, that the burden of proof then shifted from the petitioner to the respondents to show that the petitioner was an unfit person to have custody of his children.' (p. 338, 321 P.2d 195.)
And held:
'Where a father makes an application for the custody of his children by a writ of habeas corpus, after the death of the children's mother who was awarded custody in a divorce from the father, and is resisted by the maternal grandparents on the ground that the father is unfit to have their custody, he will not be deprived of such custody unless the objection is sustained by clear and satisfactory proof.' (Syl. p2.)
For decisions supporting the foregoing rule see Jendell v. Dupree, 108...
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