Young v. Minton, Civ. A. No. 7199.

• Decision Date: 31 March 1972
• Docket Number: Civ. A. No. 7199.
• Citation: 344 F. Supp. 423
• Parties: Benjamin G. YOUNG, Plaintiff, v. Margie Young MINTON, Defendant.
• Court: U.S. District Court — Western District of Kentucky

344 F. Supp. 423

Benjamin G. YOUNG, Plaintiff, v. Margie Young MINTON, Defendant.

Civ. A. No. 7199.

United States District Court, W. D. Kentucky. Louisville Division.

March 31, 1972.

George H. Logan, Hardy, Logan & Hastings, Louisville, Ky., for plaintiff.

Wallis H. Manske, Louisville, Ky., for defendant.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

ALLEN, District Judge.

This action is submitted to the Court for a decision following an evidentiary hearing held on March 29, 1972.

The action was initiated by a Writ of Habeas Corpus filed in this Court on March 9, 1972. It is established by the petition and the exhibits filed with it, which were made a part of the evidence, that on September 29, 1971, the Honorable D. B. Herring, Judge of the General Court of Justice, District Court Division, for Cumberland County, North Carolina, entered an Order in File No. 70 CVD 2016 awarding custody of five minor children born of the marriage of petitioner and respondent to the petitioner, Benjamin G. Young. Two of the children included in the Order are Denise Michelle Young and Dennis Maireo Young, who are the subject matter of the petition for writ of habeas corpus.

The order recites that both plaintiff and defendant introduced evidence through witnesses and their own testimony and that one of the matters considered was a modification of custody orders heretofore entered in this matter. The order further recites that from the entry of a previous custody order on June 9, 1970, until September 29, 1971, the five children had been supervised, cared for, and maintained by Benjamin G. Young (hereinafter referred to as Mr. Young).

Paragraph (6) of the order recites that both plaintiff and defendant are found to be fit and proper persons to have the care, custody and control of the five minor children born of their marriage.

Paragraph (7) of the order recites that there has been no hearing as to the fitness of Denver Minton, the present husband of the respondent, Margie Young Minton, and that there is no evidence that he is not a fit person whom the children may visit and further recites that Mr. Young's refusal to permit visitation away from his home was in violation of an order entered on June 9, 1970, in that said order provided that the children not be removed from North Carolina by Mrs. Minton.

The Court concluded by granting reasonable visitation to Mrs. Minton, in addition to specific times of visitation, and also granted reasonable visitation rights to both the maternal and paternal grandparents of the children. However, visitation rights of Mrs. Minton were confined to her residence in Spring Lake, North Carolina, or at any other place in North Carolina.

On December 19, 1971, Mrs. Minton, while exercising her rights of visitation in North Carolina with Denise and Dennis Young, did not return them to Mr. Young and instead brought them to Fort Knox, Kentucky, where she now resides with her husband, Sgt. Minton. As a justification for her act, which is in violation of the North Carolina Court Order, it was testified to that Sgt. Minton is in fact the natural father of these two children. It was admitted, however, by Mrs. Minton that she did not testify to this effect in the September 29, 1971, hearing. Sgt. Minton testified that he was available to be called as a witness at that hearing but was not called.

Testimony was adduced by the Mintons to the effect that they have a nice home at Fort Knox, Kentucky; that Sgt. Minton earns $850 per month; that they love the children and the children love them. There was testimony of a pediatrician located at Fort Knox to the effect that Dennis, who is now almost two years and four months of age, having been born on December 3, 1969, is normal in all respects except that his vocabulary is somewhat deficient for a child of his age. He testified to the effect that the child had improved in his vocabulary considerably since he saw him on February 14, 1972, and that he was of the opinion that the child's deficiency in his vocabulary was due to a lack of stimulation by his custodians, who were Mr. Young and his present wife, Ruby Young, for a period of about five months prior to the child's removal to Fort Knox. Apparently, prior to that time actual custody was in Mr. Young's hands alone.

Mr. Wheeler, a probation officer from the North Carolina Court, testified to the effect that he was of the opinion that custody should be vested in Mrs. Minton. He had testified in the North Carolina hearing. He felt that the children were withdrawn when under the custody of Mr. Young but that they had greatly improved and were happy under the custodianship of Mrs. Minton. He stated that much of his information upon which he relied had been furnished by Mrs. Minton's relatives and that the Youngs and their relatives were rather uncommunicative in furnishing information.

A neighbor of the Mintons at Fort Knox testified that the children's conduct had greatly improved since the time of their arrival at Fort Knox.

She and the Mintons testified that Dennis had infections on his buttocks and that it was necessary for Mrs. Minton to apply desitin to remedy the situation. There was also testimony by Mrs. Collier, the mother of Mrs. Minton, to the effect that the Young household was in shambles; that the rugs were filthy; that the couch in the den contained urine on it; and that a dog was allowed to remain in the Young's dog pen which was not clean. She also testified to the effect that Dennis was kept in a pen by the Youngs which had nothing but dirt in it.

The Youngs denied all of the allegations concerning any dirt and filth in their home, and no independent witness testified as to this condition. They denied any lack of care of the infant children, and Mrs. Young testified that she was not gainfully employed and that a baby sitter was not used often but when she was it was a woman somewhere in her sixties, whom Mrs. Collier claims is deaf.

Only one Federal case, other than those arising in the District of Columbia, has been cited to the Court as bearing on the question of whether or not this Court should confine itself to the bare question of whether there was illegal detention of the infant children or whether the matter should be broadened into a custody type proceeding with the Court taking on itself the right to modify, set aside or affirm the decree of the North Carolina Court. That case is United States ex rel. Schneider v. Sauvage, 91 F. 490 (Cir.Ct., W.D.Pa., 1899). In that case a writ of habeas corpus was prayed for by the vice consul of Belgium at the instance of a married couple who were subjects of Belgium living at Brussels. It was claimed that the child was illegally restrained without due process of law in Fayette County, Pennsylvania. The child had been born in Belgium and was the natural son of Mrs. Koster, one of the two petitioners. Mrs. Koster was not married to Mr. Koster at that time but married him two and one-half years after the birth of the child. She had given the child to her sister Maria when he was nine days old and the child had been nurtured by Maria up until the date of the filing of the application for the writ. Maria had taken the child to America when he was about two years old at the request of its natural mother. The child at the time of the writ was eight years of age.

The Court, in denying the writ, stated that no question was raised as to its jurisdiction but that its jurisdiction was that of the ordinary common law or statutory writ wherein the question was one of illegal restraint. The Court stated that there was no illegal restraint but that in view of the fact that the case was by a foreign government in behalf of one of its citizens, it would detail at length the reasons for giving the relief prayed for. The Court did cite authority on page 492 to the effect that although the Court is bound to free a person from all illegal restraints it is not bound to decide who is entitled to the guardianship or to deliver infants to the custody of any particular person, but that it may do so if it believes under the circumstances it ought to be done.

The Court then went on to state that the mother had voluntarily given custody to her sister and that it was to the best welfare of the child to remain with the sister in America in view of a virtual renunciation of the parental relationship by the mother.

This Court has already decided that by virtue of the fact that Fort Knox is a Federal reservation and that Kentucky has ceded all jurisdiction over it to the United States, jurisdiction vests here. See K.R.S. 3.030; Lathey v. Lathey, Ky., 305 S.W.2d 920 (1957); and Title 28 U.S.C. § 2241.

There is no binding precedent on this Court as to whether or not it should follow Kentucky law in deciding this case or be free to formulate its own considerations of Federal law. Technically, the Court is not sitting as a diversity court and is not bound to follow Kentucky law, but is of the opinion that it would be appropriate to use it as a vehicle in determining this case. Of course, in so doing the Court will take cognizance of several United States Supreme Court decisions which will be referred to in this Opinion and...