Summary
In Oehlers v. Oehlers (495 P.2d 236, 237 [1972]), the Court of Appeals of Colorado recently refused to transfer custody from a grandparent to the natural father although the latter was found to be fit.
Summary of this case from Matter of Catherine SOpinion
March 21, 1972.
Editorial Note:
This case has been marked 'not for publication' by the court.
J. Gregory Walta, Colorado Springs, for plaintiff-appellee.
Haney, Howbert & Akers, Rober D. Hunt, Colorado Springs, Vernon D. Flournoy, San Antonio, Tex., for defendant-appellant.
SMITH, Judge.
This is an appeal from that portion of a divorce decree awarding custody of the parties' minor child to the maternal grandparents. On May 14, 1971, a decree was entered, Nunc pro tunc April 21, 1971, granting to defendant a final decree of divorce on his counterclaim. This decree, in awarding custody of the parties' six-year-old child to plaintiff's parents, expressly incorporated the findings and conclusions made by the court as a result of a temporary custody hearing held on February 17th and 18th, 1971.
The court found, Inter alia, that Jody Oehlers was not a fit and proper person to have custody of the parties' minor child, but that Leon Oehlers, as well as both the paternal and maternal grandparents, were fit and proper persons to have custody. The court further found and concluded that the best interests of the child would be served by awarding custody to the maternal grandparents and awarded custody accordingly, subject to the continuing jurisdiction of the court.
Leon Oehlers seeks here to have that order reversed as being contrary to the law an unsupported by the evidence. We affirm.
The court heard extensive testimony and, with the consent of the parties, considered a detailed report of the probation department.
Counsel for Leon argues that, although the findings as to fitness were correct, the court failed to follow the public policy and case precedent of Colorado by denying custody to the natural father and awarding the same to the material grandparents. Leon's counsel cites Allen v. Huffman, 135 Colo. 1, 307 P.2d 802, Everett v. Barry, 127 Colo. 34, 252 P.2d 826, and Wilson v. Mitchell, 48 Colo. 454, 111 P. 21.
The underlying rationale behind preferring natural parents as custodians must arise from a societal concern for the best interest of the child. In determining what conditions of a divorce judgment would serve the best interests of a child of the marriage, the trial court's function is not solely to be an arbiter between two private parties, but also, and perhaps primarily, to determine what terms and provisions would best guarantee an opportunity for the child to grow into mature and responsible citizenship. This power and responsibility reflects society's recognition that the children involved in a divorce are in reality disadvantaged parties and that they have a right to expect the law to act affirmatively to protect their welfare. It is for these reasons that the court has a continuing jurisdiction to make such other and further orders as may be in the best interest of the child. In the instant case, the court considered the relative benefits to the child of placement with each set of grandparents and with the natural father, and made detailed findings and conclusions which, in our opinion, are supported by the evidence and which justify the custodial order entered. Coulter v. Coulter, 141 Colo. 237, 347 P.2d 492. Searle v. Searle, 115 Colo. 266, 172 P.2d 837.
Judgment affirmed.
COYTE and PIERCE, JJ., concur.