Two Minor Children, In re

• Decision Date: 07 July 1961
• Citation: 3 Storey 565,53 Del. 565,173 A.2d 876
• Court: Supreme Court of Delaware
• Parties: , 53 Del. 565 In re TWO MINOR CHILDREN.

Page 876

173 A.2d 876

3 Storey 565, 53 Del. 565

In re TWO MINOR CHILDREN.

Supreme Court of Delaware.

July 7, 1961.

Reargument Denied Sept. 13, 1961.

William Prickett, Jr., of Prickett, Prickett & Tybout, Wilmington, for appellant.

H. Albert Young and Bruce M. Stargatt, of Morford, Young & Conaway, Wilmington, for appellee.

SOUTHERLAND, C. J., WOLCOTT, J., and SEITZ, Chancellor, sitting.

WOLCOTT, Justice.

This is an appeal from a part of a judgment of the Superior Court authorizing limited rights of visitation of an adoptive mother with her adopted children. At the request of counsel, and in view of the fact that the adopted children will grow up in the Community of Wilmington, we have agreed to preserve the anonymity of the parties. This opinion, therefore, will refer to the adoptive father as X; to the adoptive mother as Y, and to the present husband of the adoptive mother as Z.

X and Y were married in Wilmington on September 13, 1948. They lived thereafter in Princeton, New Jersey, while X completed his education. Upon his graduation he obtained a position which took him to Buffalo, New York. After the marriage, it developed that Y was unable to have children and, consequently, X and Y adopted the two minor children involved in this litigation. Their present ages are 7 and 5 respectively.

While X and Y were residing in Buffalo disharmony began to take place in their marital life, and Y began to have affairs with other men. Some time in 1958 Y met Z and immediately formed an amorous attachment for him. Shortly after the meeting, Y and Z entered into an adulterous relationship. Z had been married and divorced four times, dismissed from the United States Air Force, had no job and no immediate prospects of a job.

X knew of the relationship between Y and Z. He tried to save his marriage with Y and, at his insistence, she went to see a psychiatrist. Meantime, X was transferred by his employer to Wilmington. Z also came to Wilmington and continued to see Y, who was largely supporting him. Their adulterous relationship was continued.

All of this culminated on April 13, 1959, on which day Y returned home about 6:00 A.M. after having spent the night in the company of Z. X remonstrated with Y, upon which Y packed her bag and left the marital home. Y thereafter stayed in Wilmington about eight days and returned to the domicile of X only to obtain and pack her clothes and personal belongings. She thereupon left by air for California in the company of Z.

Upon leaving, Y made no arrangements for the care of the two minor children adopted by her and X other than to leave them in the care of a nursemaid. Since that time X has provided for the care and supervision of the two adopted children through a series of nurses, housekeepers, etc.

In California Y and Z lived openly together in a small house. The expenses of supporting them were borne by Y from her inheritance and from money sent her by her mother. Z, while having a minor job for a few months, is otherwise without means of supporting himself and Y. As a matter of fact, at the present time, Y still provides the support for herself and Z, who is now her husband.

In the fall of 1959 an aunt of Y's went to California to see her and to try to persuade her to come back to Wilmington in order to straighten out her marital affairs. Y's aunt was primarily concerned about the abandonment by Y of the two minor children. Y refused to return to Wilmington and failed to show any remorse at leaving X or at abandoning the two minor children.

In the spring of 1960, Y went to Nevada, and obtained an ex parte divorce from X, thereupon returning to California and continuing to live openly with Z. In December, 1960, Y and Z drove across the country from California and were married on December 9, 1960 at Towson, Maryland. They then came to Wilmington and rented a home where they now reside. However, they have not been accepted as a part of the community by Y's former friends who refuse to see her on a social basis.

On December 22, 1960, Y filed a petition in the Family Court of New Castle County seeking custody of the two minor children adopted by her and X. As a result of a hearing before the Family Court on December 31, 1960, the custody of the two minor children was given to X and the case referred to a psychologist. The psychologist examined X, Y and the two minor children, but did not examine Z for any purpose. He reported back to the Family Court. Apparently on the basis of this report, on February 10, 1961, an order was entered continuing custody of the children in X, and allowing Y limited visitation rights.

X appealed from this order to the Superior Court and, on March 14 and 15, 1961, a hearing de novo was held by the Superior Court as a result of which an order was entered continuing complete custody of the children in X, and granting Y limited visitation rights. It is from the grant of limited visitation rights that X appeals to this court.

The limited right of visitation prescribed in the order of the Superior Court of April 7, 1961 is that Y should have the right to have the two minor children visit her at her home on alternate Saturdays from 2:00 to 5:00 P.M., out of the presence of Z, and in the presence of a staff member of the Family Court.

It is obvious that the right of visitation granted Y has been strictly circumscribed by the Superior Court but, even so, X objects to the grant of any visitation right at all. His position is that Y, by her abandonment of the children and prior and subsequent adulterous relationship with Z, has worked a forfeiture of her parental right which has not been redeemed by her subsequent marriage to Z. He further contends that Y has demonstrated by her conduct that she morally is an unfit person to have any contact whatsoever with the minor children, and that any contact with them by her, far from being in the children's best interests, would turn out to be a positive detriment.

Y contends on the other hand that she loves the children, wants to see them, and that they in turn want to see her. It is argued, therefore, that visitation with her would prove to be a benefit to the children. Y further contends that Judges of the Family Court and the Superior Court have weighed the evidence and found this to be the fact, and that, accordingly, on appeal this court must abide by their decisions in this respect.

In cases of this kind the fundamental rule to be followed by any court in providing for custody and visitation of minor children is to order that which will serve the best interests of the children and provide for them a decent, respectable place in which to be brought up. In re Maris, 7 Pennewill 242, 63 A. 197; Smith v. Smith, 4 Terry 268, 45 A.2d 879; Ex parte Marti, 7 Terry 313, 314, 83 A.2d 688, and Moore v. Moore, 1 Storey 592, 150 A.2d 194.

The cited Delaware decisions laying down the rule referred to are cases of applications for the custody of minor children rather than applications to have afforded to a parent the right of visitation. We think, however, there is no fundamental difference, except perhaps as a matter of degree, between the showing a parent must make to have the custody of children awarded him and the showing he must make to be afforded the right of visitation. In both instances, the primary concern of the court is to secure the welfare of the child.

We are not concerned in this appeal with the custody of these minor children since that has been awarded to X by order of the Family Court, which was not appealed by Y. We are concerned solely with the application of Y to have a court order X to permit her the right of visitation.

Generally speaking, a parent denied custody of minor children does not thereby lose his natural right to visit with and be visited by his child. 67 C.J.S. Parent and Child § 8; 39 Am.Jur., Parent and Child, § 14. All of the authorities we have examined are uniform in stating this as a matter of law. No point has been made of the fact that these children are adopted and, indeed, we think none could be made, for there is no difference in this problem between natural and adoptive children. 1 Am.Jur., Adoption of Children, § 52.

However, in exceptional cases the right of a parent to visit with and to be visited by his child may be denied by a court if the best interests of the child demand the deprivation of the parent's natural right. 2 Nelson on Divorce and Annulment, 2nd Ed., § 15.26. If the affording of visitation privileges to a guilty parent would injuriously affect the welfare of the child, then a court will interpose its order against the gratification of natural parental affection in the interest of protecting the child. While courts are reluctant to take away this natural inclination of parents, they nevertheless should not hesitate to do so when the affording of the right may possibly injure the child's welfare.

A parent may by his past conduct forfeit the right to visit with his child. Whether or not such a forfeiture has taken place is again related to the protection of the welfare of the child, and if the prior conduct of the applying parent is such as to raise doubt in the mind of the court that visitation between such a parent and the child would be in the best interests of the child, then visitation should be denied until, by the parent's conduct, he has demonstrated beyond doubt that visitation will not injuriously affect the child's welfare. Jacquet v. Disimone, 175 La. 617, 143 So. 710; Townsend v. Townsend, 205 Md. 591, 109 A.2d 765.

One circumstance repeatedly held to establish a forfeiture of the right to custody of children is the continuance of an adulterous relationship by a guilty parent which has caused the marriage to disrupt in divorce. The reason is that an immoral atmosphere is presumptively injurious to the child's welfare. This, of course, does not operate as an absolute rule of law since the peculiar circumstances of a...