Opinion
No. 40,209.
June 17, 1966.
Habeas corpus — custody of child — child's preference — remand for testimony.
Habeas corpus proceedings in the Goodhue County District Court, wherein the court, John B. Friedrich, Judge, awarded custody of Michael Waslie to petitioners, Merlyn and Joyce Waslie, his parents. Alice Waslie, his paternal grandmother, appealed from the judgment entered. Judgment vacated and matter remanded.
Smith Munro and Susanne C. Sedgwick, for appellant.
Holst, Vogel Richardson, for respondents.
The appeal is from a judgment of the district court establishing custody of Michael Waslie.
The proceedings were commenced by a petition whereby Merlyn Waslie and Joyce Waslie, the parents of Michael, born December 13, 1950, applied for a writ of habeas corpus directing Alice Waslie, his grandmother, to yield custody. Issue was joined and the matter came on for hearing before the District Court of Goodhue County. The trial judge found that the best interests of the child required that custody be awarded to the parents, and the judgment from which this appeal is taken was ordered.
We are satisfied that the proper disposition of this case requires that the testimony of Michael Waslie be secured so that his custodial preference, and the detailed reasons for it, can be ascertained. The considerable weight which must be given to such expressions has been frequently noted in our decisions. This essential testimony does not appear in the present record. Remand will also give the trial court opportunity to consider such further evidence as may be offered of relevant events occurring since the submission of this matter in May 1965, including Michael's progress in school since the transfer of custody pursuant to the judgment.
See, Gauthier v. Walter, 110 Minn. 103, 124 N.W. 634 (15 years old); State ex rel. Neib v. Krueger, 143 Minn. 149, 173 N.W. 414 (14 years old); Jones v. Jones, 242 Minn. 251, 64 N.W.2d 508 (14 and 15 years old); In re Guardianship of Campbell, 216 Minn. 113, 11 N.W.2d 786 (15 years old); State ex rel. Rys v. Vorlicek, 229 Minn. 497, 40 N.W.2d 350 (11 years old). See, also, Annotation, 4 A.L.R. 3d 1396.
The judgment is vacated and the matter is remanded to the district court for further proceedings in accordance with this opinion.