Wilkins v. Wilkins
| Decision Date | 27 April 1949 |
| Citation | 324 Mass. 261,85 N.E.2d 768 |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
| Parties | BRAY E. WILKINS & another v. CHARLOTTE T. WILKINS. |
April 5, 1949.
Present: QUA, C.
J., LUMMUS, RONAN SPALDING, & WILLIAMS, JJ.
Parent and Child. Minor. Guardian, Of minor. Words, "Unfit."
In determining whether parents are "unfit" to have custody of their child within the provisions of G. L. (Ter. Ed.) c. 201 Section 5, the most important consideration is whether the welfare of the child would be served by custody in them or in a guardian.
A conclusion by a judge of probate that he was not "able to find" parents, who were petitioning for revocation of a decree appointing a third person guardian of their child with custody, "jointly unfit to have custody" within G L. (Ter. Ed.) c. 201, Section 5, was error where he found that the welfare of the child would be best served by leaving him in the custody of the guardian, that the petitioning mother was unfit, and that the father, although not unfit "considered apart from her," was regularly employed in a factory, was dominated by her and could hardly counteract her influence with the child; the proper conclusion was that the parents, jointly, taken as a couple were "unfit" and the petition for revocation was ordered dismissed.
PETITION, filed in the Probate Court for the county of Middlesex on March 20, 1947.
The case was heard by Poland, J. In this court the case was submitted on briefs.
L. L. Green, for the respondent.
H.
W. Radovsky & J.
J. Harrington, for the petitioners.
The petitioners, Bray E. Wilkins and his wife Angela Wilkins, are the parents of Joan M. Wilkins, who was born October 21 1942. On March 2, 1944, Charlotte T. Wilkins, a sister of the child's father, was appointed guardian of the person and estate of the child after a hearing, "it further appearing that the father, who is in foreign military service of the United States, has assented thereto in writing, and that the mother is unfit to have the custody of said minor." The validity of the appointment of the guardian is not questioned.
On March 20, 1947, the present petitioners petitioned for the revocation of the decree of March 2, 1944, alleging that said Bray E. Wilkins has always been a fit person within the meaning of G. L. (Ter. Ed.) c. 201, Section 5, and that Angela Wilkins has now become such. A guardian ad litem assented to the allowance of the petition for revocation. On July 2, 1948, the judge revoked the decree of March 2, 1944, and reported the case. G. L. (Ter. Ed.) c. 215, Section 13.
By G. L. (Ter. Ed.) c. 201, Section 5, the parents of a minor shall have the custody of his person and the care of his education, unless the court otherwise orders. But the court may give the custody to the guardian, if the parents consent in writing, or after hearing if "it finds such parents, jointly . . . unfit to have such custody; or if it finds one of them unfit therefor and the other files in court his or her written consent to such order." We assume in favor of the petitioners, without deciding, that the petitioners have a right to the revocation of the decree of guardianship unless the facts are such as would now warrant an original appointment with custody. See Harding v. Brown, 227 Mass. 77 . In determining whether parents are unfit, the most important consideration is whether the welfare of the child would be served by custody in them or in a guardian. Stone v. Duffy, 219 Mass. 178 . Richards v. Forrest, 278 Mass. 547 , 553. Bottoms v. Carlz, 310 Mass. 29 , 33.
Cassen v. Cassen, 315 Mass. 35 , 37. It has been said that "unfit" means "unsuitable, incompetent, or not adapted for a particular use or service." Richards v. Forrest, 278 Mass. 547 , 552.
The findings of the judge may be summarized as follows. The guardian is a single woman about thirty-eight years old. She is a graduate nurse of great poise and culture, a certified psychiatrist, familiar with children, strongly attached to the child, and devoted to her. The guardian gives the child good medical care and schooling, and plans to...
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