Swarens v. B. L. Swarens. In re Opal Swarens

• Decision Date: 10 October 1908
• Docket Number: 16,019. 15,981
• Citation: Swarens v. B. L. Swarens. In re Opal Swarens, 97 P. 968, 78 Kan. 682 (Kan. 1908)
• Parties: F. M. SWARENS et ux. v. B. L. SWARENS. In re OPAL SWARENS, Petitioner
• Court: Kansas Supreme Court

97 P. 968

78 Kan. 682

F. M. SWARENS et ux. v. B. L. SWARENS. In re OPAL SWARENS, Petitioner

No. 16,019. No. 15,981

Supreme Court of Kansas

October 10, 1908

Decided July, 1908.

Error from Reno district court; PETER J. GALLE, judge.

Judgment affirmed and application made in name of Opal Swarens denied.

George A. Vandeveer, and F. L. Martin, for plaintiffs in error, and Opal Swarens.

F. F Prigg, and C. M. Williams, for defendant in error.

OPINION

PER CURIAM.

This controversy arises over the custody of a child. B. L Swarens, while residing in Oklahoma, lost his wife. She left an infant daughter, about one year of age, whose name is Opal and who is the child in controversy. The father of Opal, B L. Swarens, took the child to his parents, at Nickerson, Kan., and left her with them. The child is now about eight years of age, a bright, beautiful girl. The child's father remarried about five years after the death of the mother of Opal. For over three years before the commencement of this action he had an established home with his present wife, on a farm near Nickerson, and is financially in comfortable circumstances. He has no child other than Opal. He and his present wife demanded the custody of the child, but the grandparents, plaintiffs in error in case No. 16,019, refused to surrender her to them.

On March 23, 1908, the father commenced this action of habeas corpus to recover the custody of his child. The action was begun in the probate court of Reno county. That court awarded the child to her father, who took immediate possession under such order. The grandparents prosecuted error to the district court, where the judgment of the probate court was affirmed. The case was then brought to this court by petition in error. Pending this proceeding, an application was made to this court in the name of Opal Swarens, asking that she be returned to the custody of her grandparents until the final determination of the controversy. This application was denied, and by agreement both cases were assigned for hearing together. They have been so submitted, and will be so considered.

From the evidence it appears that the father of Opal is a well-to-do farmer; he is an educated man, and has no immoral habits. His present wife is also well educated, and of good character. They have no children, and both desire Opal to live with them. Opal has lived with her grandparents since she was one year old, and has become very much attached to them. They are also very much attached to her. The father has not been especially devoted to his daughter. His conduct toward her has been as though he anticipated a family from his second marriage, and...