State, ex rel. Bize v. Young
| Decision Date | 17 July 1931 |
| Docket Number | 27791 |
| Citation | 237 N.W. 677,121 Neb. 619 |
| Parties | STATE, EX REL. PAUL BIZE, GUARDIAN, APPELLEE, v. GLEN B. YOUNG ET AL., APPELLANTS |
| Court | Nebraska Supreme Court |
APPEAL from the district court for Nemaha county: JOHN B. RAPER JUDGE. Reversed and dismissed.
Judgment entered in the district court reversed at relators costs, and the proceedings dismissed.
Syllabus by the Court.
If a minor have no father or mother living and competent to have the custody and care of the education of such minor, the guardian so appointed shall have the custody and tuition of his ward.
However the right of the guardian to custody of the ward is not an absolute one, but the matter of custody is subject to control by the court, which may deprive the guardian of such custody or refuse to take the child from the custody of others and commit it to the custody of the guardian; the controlling consideration in the matter of custody, as in the matter of selecting the guardian, being the best interests of the child.
Every child has, from the time it comes into existence, a birthright of citizenship which vests it with rights and privileges, entitling it to governmental protection. Such government is obligated by its duty of protection, to consult the welfare, comfort, and interests of such child in regulating its custody during the period of its minority.
In awarding the custody of a minor child of over nine years of age, and of apparent intelligence and discretion, the express wishes of the child will usually be accorded great weight.
The question of religion in which children shall be brought up is entitled to careful consideration, and if their temporal interests will be as well taken care of when they are placed in the custody of persons of the same faith as their parents, that fact should be controlling.
The controlling public policy of Nebraska is that its courts, in committing children to the custody of others, shall place them, as far as practicable, in the care and custody of some individual holding the same religious faith as the parent of such child, or with some association which is controlled by persons of like religious faith of the parent of said child.
Evidence in the record examined, and held to present no matter of substantial conflict, and to establish clearly that the continuance of the custody of Valentine Grivel in and with the respondents, Glen B. Young and wife, is required by the welfare and best interests of the child, is in accord with her expressed wish, and is in harmony with the rule requiring a minor to be placed in the custody of persons of the same religious faith as her parent, particularly in the absence of any proof of any temporal advantages to be expected from a different disposition.
Appeal from District Court, Nemaha County; Raper, Judge.
Habeas corpus proceeding by the State, on the relation of Paul Bize, guardian of Valentine Grivel, a minor, involving custody of such minor, against Glen B. Young and wife. Judgment for relator, and defendants appeal.
Reversed and dismissed.
Ernest F. Armstrong and F. P. Marconnit, for appellants.
Robert M. Armstrong, contra.
Heard before GOSS, C. J., ROSE, DEAN, GOOD, EBERLY, DAY and PAINE, JJ.
This is a habeas corpus proceeding; a controversy over the custody of a child, now ten years old, named Valentine Grivel. The relator prevailed, and respondents appeal.
The fair inference from the record before us is, that her parents, Joseph Grivel and Judith Grivel, migrated from France to America and settled in Nemaha county; that French thereafter continued to be the language of the home. They there acquired a 66-acre farm, and at the time of the father's death had accumulated, in addition to the farm, more than $ 5,000 in personal property. To Joseph Grivel and Judith Grivel were born four children: Martin, Henry, Joseph, Jr., and Valentine, who were respectively, at the inception of the litigation out of which the present controversy arose, 16, 15, 9 and 8 years of age. Glen B. Young was the banker and family adviser of both the father and mother, and apparently possessed their confidence and esteem. The sole relation by blood this family possessed in America was Mrs. Marie Anville, an aunt or cousin of the minors. The father died and Judith Grivel on January 12, 1928, filed a petition in the county court for Nemaha county for her own appointment as guardian for her minor children. She was duly appointed and served until her death on February 3, 1929. Thereafter on February 5, 1929, Martin and Henry Grivel, then aged 16 and 15 years respectively, caused to be filed a petition setting forth the death of their mother and the facts establishing the necessity of the appointment of a successor to Judith Grivel, deceased, as guardian, and nominated Glen B. Young for appointment as their guardian, and likewise prayed for his appointment as guardian for their minor brother Joseph, aged 9, and their sister Valentine, then aged 8. Seward v. Didier, 16 Neb. 58, 20 N.W. 12. No objections or answer were filed thereto. Due notice appears to have been given of this proceeding, and the county court for Nemaha county, by a decree dated February 7, 1929, found: Their nomination of, and prayer for the appointment of, Glen B. Young was accordingly disapproved and denied; and one Jules Bernard was thereupon appointed as guardian for all of the four children. However, Jules Bernard refused to accept the appointment thus made and failed to qualify. On March 2, 1929, the county court, so far as disclosed by the record before us, without further notice or any consultation or communication with the minors involved, and without any order of continuance, or order setting the time for hearing of the matter, appointed Paul Bize as their guardian, who thereupon on March 4, 1929, qualified by taking the oath and giving bond as required by law. On March 15, 1929, all of the minors involved, by their next friend and next of kin, Marie Anville, gave notice of and perfected an appeal from the order of March 2, 1929, making the appointment of Paul Bize as guardian. On April 24, 1929, this appeal proceeding was dismissed on behalf of the parties taking same. On May 3, 1929, Martin Grivel, aged 16, Henry Grivel, aged 15, and Marie Anville, an aunt or cousin of the minors, and "the only blood relative of all of said minors living in the United States," filed their petition in the county court for Nemaha county for the removal of Paul Bize as guardian, and the appointment of Jules Bernard in place thereof. This pleading alleged, among other things: That the minors and next of kin involved had no knowledge or notice of the failure of Jules Bernard to qualify as guardian under the appointment made February 7, 1929, nor of the hearing had on March 2, 1929, at which time Bize was appointed, nor did they have any knowledge of the county court's intention to appoint Paul Bize as guardian; that his appointment is not agreeable to them; that the parents of said minors, who died within the last two years, lived in the same community with the said Paul Bize for many years, and did not have a favorable acquaintanceship with him, and that the minors likewise did not have a favorable acquaintance with him; that said minors and said Marie Anville have not in the past had any dealings with Paul Bize and prefer a guardian with whom they are acquainted, and that all of said minors refuse to be controlled or live with the said Paul Bize, and if compelled to submit to personal direction with reference to their person, it will be against their will; that Jules Bernard (who had theretofore, without suggestion from the minors, been appointed by the court, but who had once refused the appointment) was a competent and suitable person to act as guardian, and had now consented to act if appointed by the court; and prayed for the removal of Paul Bize. (It is to be remembered, in this connection, that "Jules" is the French form of the name "Julius.") To this petition, answer was filed by Bize, and, on hearing of the issues thus joined, the county court found for the defendant and against all of the minors, and failed to remove its appointee, denying the prayer of the petition wholly. An appeal was prosecuted from this judgment to the district court for Nemaha county. It was there heard on June 26, 1930, taken under advisement, and later determined and judgment entered on July 1, 1930, reversing the order of the county judge appointing Paul Bize as guardian for Martin Grivel and Henry Grivel, but affirming it as to Joseph, Jr., and Valentine, the findings of the district court as to Joseph and Valentine being limited to the following: "The court finds that the county court had jurisdiction to appoint Paul Bize guardian of Joseph Grivel and Valentine Grivel, minors under the age of fourteen years, and no cause has been shown why Paul Bize should be removed as their guardian."
During the proceedings herein referred to, a petition for the unconditional adoption of Valentine Grivel by the Youngs was forwarded to Paul Bize for his consent as guardian. This he refused...
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