State ex rel. Kiger v. Hancock

Decision Date22 July 1969
Docket NumberNo. 12841,12841
Citation153 W.Va. 404,168 S.E.2d 798
CourtWest Virginia Supreme Court
PartiesSTATE ex rel. Carrie Ann Hobbs KIGER v. Cozette HANCOCK and Alfred Hobbs.

Syllabus by the Court

A parent has the natural right to the custody of his or her infant child and, unless the parent is an unfit person because of misconduct, neglect, immorality abandonment, or other dereliction of duty, or has waived such right, or by agreement or otherwise has permanently transferred, relinquished or surrendered such custody, the right of the parent to the custody of his or her infant child will be recognized and enforced by the courts.

Arch J. Alexander, Jr., Marmet, for relator.

Carroll W. Casto, R. Michael Shaw, Pt. Pleasant, for respondents.

HAYMOND, President:

In this original habeas corpus proceeding, instituted in this Court in June 1969, the petitioner, Carrie Ann Hobbs Kiger, seeks a writ to require the defendants, Cozette Hancock and Alfred Hobbs, to deliver the custody of Stephen Foster Hobbs, 11 years of age, and Robin Rena Hobbs, 10 years of age, infant children of the petitioner, Carrie Ann Hobbs Kiger and Orville Hobbs, formerly her husband, now deceased, who lived together as husband and wife from the date of their marriage November 14, 1956 until their separation in 1962. These children, by virtue of an agreement between the petitioner and her husband, were committed to the custody of their father, Orville Hobbs, and his custody of them was approved by the Domestic Relations Court of Kanawha County in the divorce proceeding of Carrie Ann Hobbs v. Orville Hobbs, by decree entered March 4, 1964, and pursuant to that decree the children remained in his custody until his death in March 1969. After the death of Orville Hobbs the defendant Cozette Hancock, a sister of Orville Hobbs and an aunt of the children, was appointed their guardian by the County Court of Mason County, West Virginia, on March 11, 1969, and she is now acting as their guardian. By order entered March 21, 1969, by the Circuit Court of Mason County, the custody of the children was awarded by that court to the defendant Cozette Hancock, who resides with her father, the defendant Alfred Hobbs, who is also the father of Orville Hobbs, deceased, and the grandfather of the children, at his home on Star Route, in the rural community of Gallipolis Ferry, in Mason County, West Virginia. The relief sought by the petitioner in this proceeding is to obtain the custody of the children from the defendants, with whom they now live, to terminate the guardianship of the children and to require Cozette Hancock, as their guardian, to deliver the estate and assets of the children in her possession to the petitioner.

Upon the petition and its exhibits this Court on June 16, 1969, issued a writ returnable July 1, 1969. On the return day of the writ the defendants filed their return and produced the children in open court and this proceeding was submitted for decision upon the petition and its exhibits, the return of the defendants, the depositions in behalf of the respective parties, the exhibits with the depositions, and the briefs and the oral arguments of counsel.

The question to be determined involves the custody and care of children of tender age and is one of the most perplexing and difficult to be decided by a court, as the result of the decision will materially affect the future welfare and happiness of the children. The controlling principle in every such case is the welfare of the child and this Court has repeatedly said that in a contest involving the custody of an infant the welfare of the child is the polar star by which the discretion of the court will be guided. Holstein v. Holstein, 152 W.Va. 119, 160 S.E.2d 177; Whiteman v. Robinson, 145 W.Va. 685, 116 S.E.2d 691; State ex rel. Harmon v. Utterback, 144 W.Va. 419, 108 S.E.2d 521; Lucyk v. Brawner, 144 W.Va. 690, 110 S.E.2d 739; Stout v. Massie, 140 W.Va. 731, 88 S.E.2d 51; Smith v. Smith, 138 W.Va. 388, 76 S.E.2d 253; Pugh v. Pugh, 133 W.Va. 501, 56 S.E.2d 901, 15 A.L.R.2d 424; State ex rel. Lipscomb v. Joplin, 131 W.Va. 302, 47 S.E.2d 221; Pukas v. Pukas, 129 W.Va. 765, 42 S.E.2d 11.

In determining the question of custody in this proceeding it is necessary to consider the character, the conduct and the ability of the petitioner, the natural mother of the children, to support and care for them and to provide them with a proper and suitable home. On that point the evidence shows that after her divorce from her former husband on March 4, 1964, the petitioner was unable financially to have their custody and to support them. During that period and until her marriage to her present husband on August 16, 1964, she worked as waitress at different restaurants in Fayetteville, North Carolina, where the first became acquainted with her present husband. She is 28 years of age. Her husband is a matter sergeant in the United States Army and is presently stationed at the Yuma Proving Grounds, a military post at Yuma, Arizona. He is the father, by a previous marriage, of two boys of the ages of 13 and 14 years who make their home with the petitioner and her husband. Her husband was stationed in Thailand for a period of about 25 months where he and the petitioner made their home. They returned from Thailand on April 9 of this year and they are now residing at the military post in Yuma, Arizona. Her husband's salary is approximately $670.00 per month and he is presently furnished a home by the government on the military reservation. Their present home consists of a 5-room house with 2 bathrooms and a large lawn. It also contains a large storage room and has a patio and carport nearby. It is one of a number of homes located in a circle in the center of which there is a large playground for children. The house is electrically heated and air-conditioned. There is a public school about 2 blocks from the house and there are other nearby recreational facilities, such as bowling lanes, theaters, swimming pool, craft shop, gymnasium and a baseball field for the use of children.

The petitioner and her husband are of good moral character, are fairly well educated, and petitioner's husband wishes her to have the custody and care of the children and he is willing to support them as if they were his own. Though the petitioner agreed that the custody of the children should be with her former husband until his death, and though because of her inability to support them before her marriage to her present husband and her inability to be with them because of his assignment in Thailand until April of this year, there is no indication that she ever intended to relinquish permanent custody of her children or that she has abandoned them. She testified that she loves her children and desires to have their custody and care.

The defendant Cozette Hancock, 43 years of age, is married but separated from her husband who makes his home in Florida. She is the mother of four children, three daughters aged 17 years, 13 years and 11 years, and one son aged 12 years, and is an aunt of the children of the petitioner. They make their home with her in a 5-room house located on a sixty-five acre farm on Pleasant Ridge Road, Gallipolis Ferry, Mason County, West Virginia, in which her father Alfred Hobbs, a widower 81 years of age, and her sister Florence Hobbs also make their home. The 5-room house has only 3 bedrooms. On bedroom is occupied by the grandfather and Stephen Foster Hobbs; and the other 7 persons share the other 2 bedrooms. The home is not equipped with running water and it has no inside toilet facilities but there is a telephone in the house. The farm is owned by Claude E. Hobbs, a brother of Cozette Hancock and a son of Arthur Hobbs, and its owner premits them to occupy it free of rent.

The children of the petitioner attend the local public school which is located about 3 miles from their home. They have just completed their fifth grade studies and will be in the sixth grade of the school during the next school year. The children also attend the Christian Church and Sunday School. They are active in school events and have a satisfactory school record. Stephen has a pet dog and Robin looks after the chickens on the farm. Stephen Participates in school athletics and is a member of its football team.

The grandfather has a monthly income of $115.00 from the United Mine Workers Fund and a monthly social security benefit of $79.90 or a total monthly income of $194.90.

Cozette Hancock receives $100.00 per month support money from her husband and as guardian of the children of the petitioner she receives monthly payments of $48.40 social security benefits and $28.00 veterans administration benefits or a total of $76.40 each month of each child. She is interested in the education of the children and occasionally attends meetings of the local Parent-Teacher Association. The family life and the moral surroundings of the children are typical of the family life in an isolated rural community of that section of West Virginia. The children have no medical or hospital insurance and the nearest available doctor is located in Point Pleasant, which is about 12 miles from their home. Cozette Hancock, her sister, and her father are fond of the children of the petitioner and they are fond of their aunts and their grantfather, they are well and kindly treated by their aunts and their grandgather, and the children of the petitioner and the other children in the home are fond of each other and get along well together. The children of the petitioner have lived in their present home since 1961 when they were brought there by their father who lived there and had their custody until his death in March 1969. Both children enjoy normal good health and in testifying each expressed the desire to continue to reside in the home where they now live, although Robin indicated that she would also like to be...

To continue reading

Request your trial
64 cases
  • In re Abbigail Faye B.
    • United States
    • Supreme Court of West Virginia
    • May 23, 2008
    ...parent to the custody of his or her infant child will be recognized and enforced by the courts. Accord Syl., State ex rel. Kiger v. Hancock, 153 W.Va. 404, 168 S.E.2d 798 (1969). We also have appreciated that such rights are not just constructs of the courts, but that they are basic liberti......
  • Simmons v. Comer, 21459
    • United States
    • Supreme Court of West Virginia
    • December 13, 1993
    ...recognized and enforced by the courts.' Syl. pt. 2, Hammack v. Wise, W.Va. , 211 S.E.2d 118 (1975); Syllabus, State ex rel. Kiger v. Hancock, 153 W.Va. 404, 168 S.E.2d 798 (1969); Syllabus, Whiteman v. Robinson, 145 W.Va. 685, 116 S.E.2d 691 (1960)." Syl. pt. 1, Leach v. Bright, W.Va. , 270......
  • Kessel v. Leavitt, 23557.
    • United States
    • Supreme Court of West Virginia
    • July 22, 1998
    ...parent to the custody of his or her infant child will be recognized and enforced by the courts." Syllabus, State ex rel. Kiger v. Hancock, 153 W.Va. 404[,] 168 S.E.2d [798] (1969). Syl. pt. 2, Hammack v. Wise, 158 W.Va. 343, 211 S.E.2d 118 Identifying the preeminence of a parent's right to ......
  • Overfield v. Collins, 23046
    • United States
    • Supreme Court of West Virginia
    • February 11, 1997
    ...proved to be unfit to have the care and custody of such child. We established this general rule in the Syllabus of State ex rel. Kiger v. Hancock, 153 W.Va. 404, 168 S.E.2d 798 (1969): A parent has the natural right to the custody of his or her infant child and, unless the parent is an unfi......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT