DocketNumber: No. 5841.
Citation Numbers: 14 P.2d 958, 52 Idaho 330
Judges: GIVENS, J.
Filed Date: 9/28/1932
Status: Precedential
Modified Date: 1/12/2023
I concur in the majority opinion, but I am of the opinion that it would be more clear if further amplified, particularly with reference to the rule of fitness of the mother. I therefore submit the following to express the views which have furnished the basis of my concurrence. *Page 333
No findings of fact were made by the judge, but in the preamble of his order it is recited that it is for the best interests of the child that the order of custody be modified. An application to modify a decree is not a new action but is a proceeding ancillary to the original action (Smith v. Frates,
An examination of the record discloses that there is evidence which, if believed, would have sustained findings to the effect that the father was fit, that the mother was unfit, that conditions have changed, and that the best interests of the child required the change of custody. Inasmuch as *Page 334
the determination of these matters is in the first instance confided to the trial court (Olson v. Olson,
As to the rule relative to the fitness of the mother, it has appeared to me that a more extended discussion is necessary than is contained in the majority opinion.
The excerpt from Corpus Juris quoted in the Kirkpatrick case, and upon which the decision is based, is subject to certain qualifications which appear in the cases cited by the author. The original excerpt (19 C. J. 351, last sentence in paragraph 810) is based upon three cases cited in footnote 52 — Bryan v.Lyon,
The rule as usually framed in the decisions is that a mother will not be deprived of the custody of a child of tender years unless it clearly appears that the welfare of the child demands it. The rule itself is based upon the consideration that a mother is naturally better able and more inclined to give such a child that loving care and maternal attention which its tender age requires, and therefore the operation of the rule will usually be found to subserve the interests of the child. Three factors must enter into a determination of such a matter, i. e., the age of the child, its sex and its welfare. This is the tenor of all the decisions cited in the Kirkpatrick case.
In Feather v. Feather,
"The evidence further shows that the mother gave to the child genuine, loving affection and excellent maternal care. . . . .
"We think it is generally conceded that the best interests and welfare of a child of tender years will be best subserved by placing it in the custody of its natural mother, if she is a fit and proper person. It is seldom, if ever, that any other person can be found who will bestow upon a child inarms such tender and loving care and who will have its welfare so much at heart, as its mother. The record does not disclose anything that would justify denying to this mother the care and custody of her infant daughter. The welfare and best interests of the child demand that its custody be committed to the mother." (Italics ours.)
The reason for an application of the rule is greatly lessened in this case, because appellant has not lived with the child, and has not given him that maternal care which constitutes its fundamental basis. Rather has she entrusted him to strangers, and absented herself from him for long periods of time. I do not doubt that she yet entertains deep affection for the child, but this of itself is not enough *Page 336
upon which to invoke a categorical application of the principle. (Van Syckle v. Van Syckle,
No rule of thumb can be laid down as to what constitutes a child of tender years. As a child becomes older the reason for the rule becomes less strong. As to infants in arms its operation would rarely ever be denied, but we cannot say as a matter of law that it must be invoked as to a boy now over nine years of age. (Russell v. Russell,
In the journey of a child from infancy to majority conditions may change which render a change of custody originally granted to the mother desirable from the standpoint of the child's welfare. It is for the lower court to draw the line and make the decision in the first instance. Ordinarily a court is never justified in separating an infant child from its mother, except upon clear and convincing proof that its welfare will be endangered by not so doing. But upon such clear and convincing proof, the court has discretion to make such disposition of the child as it sees fit. This rule has already been approved inOlson v. Olson, supra, where the court said, "Awarding the custody of a child of tender years to its father, rather than its mother, on evidence that the father is better fitted to care for and educate it, does not constitute an abuse of discretion." The rule of fitness is not alone concerned with moral fitness, but with all other elements of character and circumstance which can properly enter into a consideration of what is best for the child. We are not required to brand a mother as immoral, before we may enter such order to conserve the future welfare of the child as is clearly required by the proof. As stated in Piatt v. Piatt,
Phoenix Safety Investment Co. v. James , 28 Ariz. 514 ( 1925 )
Babbitt Cowden Livestock Co. v. Hooker , 28 Ariz. 263 ( 1925 )
United Bk. T. Co. v. Washburn Condon , 37 Ariz. 223 ( 1930 )
Russell v. Russell , 20 Cal. App. 457 ( 1912 )
Cleveland v. Mochel , 48 Idaho 37 ( 1929 )
Olson v. Olson , 47 Idaho 374 ( 1929 )
Kirkpatrick v. Kirkpatrick , 52 Idaho 27 ( 1932 )
Winn v. Winn , 243 Mich. 587 ( 1928 )