State Ex Rel. Veach v. Veach , 122 Mont. 47 ( 1948 )

There is no contention in this case that Ross R. Veach, Jr., was the father of Ronald Medhaug Veach. Then his parents Ross R. Veach, Sr. and Una Veach, the defendants herein, are strangers to the blood of the infant child. The question then is: What is the right of the mother of an illegitimate child to its custody as against strangers? The law provides: "The mother of an illegitimate unmarried minor is entitled to its custody, services and earnings." Section 5837, Revised Codes of Montana, 1935. This is the general rule elsewhere. See annotation 51 A.L.R. 1507.

But the rule is not inflexible that the mother has the right to the custody of her illegitimate child. Where she is so clearly unfit to care for the child that the welfare of the child imperatively demands that the child be cared for elsewhere (Fowler v. Bright, D.C., 4 F. Supp. 565) or where she abandons the child and fails to support it or consents to its adoption by strangers, she may forfeit her right to its custody. 51 A.L.R. 1510, 1515.

In the instant case there was no evidence that the relatrix was not a fit and proper person to care for the child so that it must be presumed that the mother's character and conduct is such as to entitle her to the child's custody. Likewise it is conceded that both the relatrix and the defendants can maintain a home for the child, are able to support it and give it ordinary advantages.

The case then resolves itself into a determination as to whether there was sufficient evidence of abandonment of the child to cause the mother to forfeit her prima facie right to its custody.

The relatrix and Ross R. Veach, Jr. were living together as husband and wife in Minot, North Dakota. They were caring for the child. Then Ross R. Veach was called into the service of his country. He was inducted into the army approximately a year after he married. It was agreed that the relatrix was to stay with the defendants, that they were to care for the child and that the relatrix was to work. When the war was over and the couple could resume their normal life together the agreement was that they were to get the child back. Ross R. Veach, Jr. secured an allotment from the government for the care of relatrix' child and this money was sent to the defendants. Evidently the relatrix' and the defendants' life together was not harmonious. At any rate she left Havre without telling the defendants where she was going. But there was nothing to indicate that she intended to change the agreement under which the child was left with the defendants or to abandon her child. When her husband returned after the war was over she presumably still intended to renew their marital relationship and together they would rear Ronald. The relatrix testified that she continued to correspond with her husband; she continued to draw her allotment as Ross' wife and the government continued to send to the defendants the allotment for Ronald. The relatrix was working in Seattle when she learned that her husband had been killed. She then had no place where she and Ronald could live. Nor in all probability could she easily find such a place. We are cognizant of the housing shortage and are aware of the difficulties encountered by a mother trying to find lodging for herself and a young child. Certainly the fact that she did not immediately demand custody of the child is not in itself evidence of an intention to abandon the child.

Unquestionably the paramount consideration in awarding the custody of a child is what will best advance the child's welfare and happiness. Section 5878, Rev. Codes 1935; Haynes v. Fillner,106 Mont. 59, 75 P.2d 802. But presumptively the best interests of an illegitimate child require that its custody be awarded to the mother. Section 5837, Rev. Codes 1935; Haynes v. Fillner, supra. It is also true that the trial judge has large discretion in awarding the custody of a minor child but that discretion must be exercised in favor of the party having the legal right if the evidence justifies it. Kilgore v. Tiller,194 Ga. 527, 22 S.E.2d 150. So that to overcome the presumption established by statute that the best interests of the child are best subserved by placing it in the custody of its parents the trial judge must find an abandonment or that the mother is not a fit person. Binion v. Mathis, Tex. Civ. App., 171 S.W.2d 512; Ex parte Malley, 131 N.J. Eq. 404, 25 A.2d 630; Commonwealth ex rel. Self v. Self, 153 Pa. Super. 443, 34 A.2d 263. Where the mother is presumptively entitled to the custody of the child we cannot resort to the doctrine of implied findings to sustain a ruling against the mother's rights.

None of the cases cited by the majority go so far.

In Ellison v. Platts, 226 Iowa 1211, 286 N.W. 413, the court reviewed a record of a trial lasting four days and sustained a finding that the mother was "not capable of giving the said child a proper care, or comfort or home." In addition the court found that there was an oral agreement to surrender the child and a wilful abandonment. The court also said: "It must not be overlooked that the child is of the blood of the Defendants herein * * *." Certainly a different situation from the instant case where defendants are strangers to the blood.

In Knochemus v. King, 193 Iowa 1282, 188 N.W. 957, the boy whose custody was in controversy was 14 years old. The mother had voluntarily surrendered his custody, the foster parents had adopted the child and 14 years had elapsed. But even so the court said the determining factor was the wish of the boy to remain with his foster parents. The expressed wish of a child of an age to be able to exercise his powers of determination to stay with the foster parents was the decisive factor in awarding the custody in State ex rel. Bize v. Young, 121 Neb. 619,237 N.W. 677, and in Barry v. Reeves, 203 Iowa 1345, 214 N.W. 519. In Armstrong v. Armstrong, Iowa, 192 N.W. 146, the finding with supporting evidence was that the father was not a fit person to have the custody of a five-year-old daughter. The determinative point in Hadley v. Forrest, 112 Iowa 125,83 N.W. 822, was also that the parent was not a fit and proper person. In Smidt v. Benenga, 140 Iowa 399, 118 N.W. 439, and McDonald v. Stitt, 118 Iowa 199, 91 N.W. 1031, the long period of unaccounted for abandonment was properly held to be an outright abandonment, but the period that elapsed (10 years in the first case and 11 years in the latter) was much greater than in the case at bar. The case of Rust v. Trapp, Iowa, 201 N.W. 565, was a controversy between divorced parents and is not in point.

The majority decision unwarrantedly deprives a mother of her right to her child. I therefore dissent.