Opinion
No. 7282.
November 20, 1953.
T. H. Brain, Kansas City, E. C. Hamlin, Springfield, for petitioner.
Edwin F. Brady, Warsaw, for respondent.
This is an original habeas corpus proceeding by Josephine P. Ferguson against George Garrison asking that the minor daughter, Ardythe Jackson, be returned to the custody of petitioner.
The petition alleges that Ardythe Jackson, a minor child of the age of 12, is being illegally restrained by respondent in Hickory County, Missouri, by George Garrison, the child's uncle; that petitioner had an agreement with Garrison to take care of said child and furnish her room and board until such time as petitioner could provide a home for her; that she now has a home where she can look after the child, maintain and support her; that she made demand for the custody and said Garrison refused to turn the custody over to petitioner and is now unlawfully depriving her of her liberty.
The return to the writ denies that the child is being illegally restrained of her liberty; that petitioner abandoned said child at the home of respondent and gave permanent custody thereof to respondent and his wife and stated that if respondent did not take her, she was going to place the child in an orphan's home.
The return pleads that petitioner is an unfit and immoral person and, for that reason, is not entitled to the custody of the child; that the child desires to remain with respondent.
The testimony shows that petitioner was married to Jackson in 1940; that there were born two children to the marriage, the child in question and a boy; that petitioner was divorced from Jackson in 1946, in Kansas City; and was granted custody of the two children; that she was unable to care for such children and placed them with the children's grandmother in Hickory County, Missouri. The evidence shows that the grandmother was threatening to put the children in an orphan's home and that respondent learned of this action and asked petitioner to let him have the children, which petitioner did; that Ardythe Jackson was placed with respondent at the age of 7 years and has been in his custody since that time; that respondent and his wife have cared for and educated this girl and in all respects have furnished her a good home and are now able and willing to continue to care for and support her.
Petitioner testified that she married a Mr. Smith in 1947 and there was born a child of that marriage, who now lives with petitioner; that she was divorced from Smith and married her present husband, Ferguson, October 17, 1950, and that there was born to this marriage one child who now lives in the home.
The testimony is undisputed that petitioner and her husband live in an apartment, consisting of four rooms, in Kansas City, which belongs to petitioner's husband's sister. The evidence as to the condition of the apartment showed that it was fairly good but not of the highest type. The testimony shows that petitioner went to the home of respondent and seized the boy and now has custody of him, making petitioner, her husband, and three minor children living in the apartment.
It seems that the father of Ardythe Jackson was in the army and petitioner is receiving payments from the government for these two children; that she turned over $15 per month to respondent to help care for the girl while she was with respondent.
Petitioner's husband is steadily employed in Kansas City and earns about $170 every two weeks. He testified he was willing to help support the minor child if the court awarded custody to petitioner.
It is the judgment of this court, after hearing the testimony and seeing the witnesses, that it is questionable whether or not petitioner can properly care for and support the minor child in issue. She is of the age of 26 years, has been married three times and now has living in the home two of her own children and an adopted child. Ardythe Jackson is now 12 years old. She has spent all of her school life with respondent. She took the stand and urged the court to not send her back to her mother. Her appearance showed that she had been well cared for. She is now in the very middle of her school year. She has lived in the country all of her school life and we believe it would not be for the best interest of this child to disturb her life in the community where she lives and place her in the home of petitioner where the stability of the home is so uncertain. The welfare of the child is the guiding principle to be followed by the court and it is our judgment that the welfare of this child is with its uncle. We clearly recognize the rule of law that the natural rights of the parents should be a consideration but, under the facts in this case, we believe the custody should be denied petitioner. Ex parte Badger, 286 Mo. 139, 226 S.W. 936, 14 A.L.R. 286; Thelen v. Ekberg, 237 Mo.App. 258, 167 S.W.2d 645, 649.
Petition denied.
BLAIR, J., concurs.