Forbes v. Warren

Anderson, J., delivered the opinion of the Court. This is a habeas corpus proceeding in the Chancery Court of Marion county, by the appellee, J. E. Warren, father of Mollie Jo Warren, a minor, against the appellants, Mr. and Mrs. A. S. Forbes, the maternal grandparents of the child, to recover her custody. The case was heard on bill, answer and proofs, resulting in a decree in favor of appellee. From that decree appellants prosecute this appeal. The appellee married Mollie Forbes, daughter of the appellants, in June, 1923. Mollie Jo Warren, the only child of the marriage, was born March 22, 1924 — th& mother died a few hours thereafter. The father and grandparents agreed that the child should remain with the latter. She has been with them ever since. For some years the father was engaged as a railroad worker in Louisiana, Arkansas and Texas; during that time he did not often see the child. He quit railroad work and married in 1934. There are no children by this marriage. He bought a small farm in Marion county. When this action was begun in July, 1937, he was engaged in operating his farm, and he and his wife were residing thereon. The grandparents are also country people, residing on a farm in a neighborhood some distance from the father and stepmother. Their farm consists of about two hundred acres, on] which there are tenants. The child will be fifteen years old on her next birthday. All her life she has been with her grandparents. The contributions of her father for her maintenance and care have been small compared to that of her *532 grandparents — .they have borne very much the larger part of the cost of her care, maintenance and education, although there was no evidence that the father had declined to contribute thereto when called upon. The evidence showed without conflict that the grandparents were eminently fitted, morally, intellectually and financially, to have the care and custody of the child. The evidence also tended to show, and the Chancellor necessarily, found as a fact, that the father and stepmother were fit persons to have her custody and control. The grandfather and grandmother • are about fifty-nine and fifty-three years of age, respectively, while the father is in his forties, and the stepmother in her late thirties. Before her marriage the stepmother was a school teacher. The grandparents were willing, with the consent of the child, to grant her custody to her father and stepmother - — they left it to the child. It is conceded by the father and stepmother that the child was not willing to go to them. The evidence showed, without conflict, that she was passionately opposed to going. There was some evidence tending to show that the change might jeopardize the health of the child. The change would result in new surroundings, new acquaintances and companions. There is no substantial conflict in the evidence that the happiness, welfare and best interests of the child are with her grandparents, and not with her father and stepmother. The question is, whether those considerations should fie controlling, under the facts of this particular case. We are of opinion that they should fie. It is true that, everything else being equal, the father is entitled to the custody of his child. Nevertheless, “The welfare of the child or children is the matter of chief importance; and the consideration of their welfare will prevail over any mere preponderance of legal right in one or the other party. . . . The age, sex and physical condition of the child are often important elements in determining what custody would be for its best welfare. . . . The wishes of children of sufficient capacity to choose for *533 themselves should he given especial consideration when their parents have, for a long time, voluntarily allowed them to live in the family of another, and the Court will make no coercive order in such cases to enforce the mere legal right of the parent to their custody against the manifest inclination and reasonable choice of the children to remain where they are.” 20 R. C. L., Sec. 15, pages €01-603. These principles are supported by a wealth of authorities from other states, referred to in the notes. To the same effect are Cocke v. Hannum, 39 Miss. 423; Maples v. Maples, 49 Miss. 393; McShan v. McShan, 56 Miss. 413; Hayes v. Morgan (Miss.), 164 So. 880. Bryant v. Brown, 151 Miss. 398, 118 So. 184, 60 A. L. R. 1325, illustrates how far the courts will go in considering the best interest of the child as against the parents. The child, in that case, had been guilty of some petty misdemeanors. The mother and father were not shown to be unfit to have its custody and rearing; but it was shown to the satisfaction of the court that its best interest was as an inmate of the State Industrial Training School. Accordingly it was committed to that institution. That action of the trial court was affirmed by this Court. What the Supreme Court of Florida said in Bourn v. Hinsey, 183 So. 614, 617, is helpful on this question. The Court used this language: “But when the ties of blood run counter to the force of environment, the former usually give way or tragedy follows.” What we are holding does not trench on Hibbette et al. v. Baines, 78 Miss. 695, 29 So. 80, 87, 51 L. R. A. 839. The Court held in that case that the separation of the children from each other was a matter to be considered along with the feeling between them and their father. With reference to the feeling, the Court used this language: “What does the record show as to the state of feeling between the father and his children? The father came from Birmingham to see his children several times every year, except for one interval of two years; and was vis *534 ited by his children at his home in Birmingham; and there was a regular correspondence kept up between him and the aunts and the grandmother, and letters were also regularly written or messages sent for the children to their father. These letters and messages on the part of the children breathe the tenderest affection. They call him ‘ Darling Pops, ’ and anticipated his visits with greatest pleasure. On his part his letters show the deepest and most constant affection and solicitude.” No such feeling was shown to exist between appellee and his daughter. Reversed and judgment here for appellants.