Avila v. Hill

JOY, Justice. Appellees, Byron D. and Martha Hill, brought this action, an application for a writ of habeas corpus and a restraining or [542] der against Alma Guerrero, Alice Avila, and others, seeking custody of a minor child, Teresa Avila, age seven. From an order granting appellees the custody of said minor, appellant Alice Avila has prosecuted this appeal. Affirmed. A review of the record indicates appellant Alice Avila is the natural mother of the minor child in question. This child, Teresa Avila, was horn on March 27, 1965, and is the youngest of four children of Alice Avila. The parties to this action stipulated the child was legally adopted by her natural grandmother, Mrs. Broulia Avila, in 1969. Alice Avila testified her father, Mrs. Broulia Avila’s husband, had died in 1968, and to enable Broulia Avila to be eligible to receive a pension from the Railroad Retirement Board, Alice Avila voluntarily consented for her mother to legally adopt the child. The validity of this adoption is not questioned. The child lived with Broulia Avila until the latter’s death in May of 1972, except for a period of a year and a half immediately prior to Mrs. Avila’s death, when the child was living with the natural mother’s youngest sister. Included in Broulia Avila’s will was a proviso which requested that appellees take custody of Teresa. The record further reflects that Broulia attended church with the appellees over a period of several years, and visited in the home numerous times with appellees. The minor child was also a member of the church and attended regularly with her adopted mother. Upon Broulia’s death, her will was probated and appellees attempted to gain custody of the minor child. The aunt of the minor, Alma Guerrero, refused to relinquish custody to appellees and this action arose therefrom. Appellees are unrelated to the minor child. At the time of trial, the natural mother was unmarried, but had been married on three prior occasions. The judgment of the trial court made certain findings, among which was a finding that appellees were fit and proper persons to have the custody of the minor child and this was in the best interests of the child. Appellant raises the single point here that the natural mother had a paramount legal right to the custody as opposed to outside third parties. Appellant relies primarily upon Luman v. Luman, 231 S. W.2d 555 (Tex.Civ.App.—Texarkana 1950, no writ) and Thompson v. Doyal, 209 S. W.2d 425 (Tex.Civ.App.—Austin 1948, writ ref’d n.r.e.). Luman did not involve a minor that had been adopted out, as we have here, but the custody of two minor children in that case was awarded to grandparents over the natural father. The court pointed out that the trial court exercises broad equitable powers in respect to custody matters and has the duty to determine how the best interests of minors would be served. In Thompson v. Doyal, supra, the court recites that neither the natural parent nor the grandfather had any paramount claim to the custody of the children, and the trial court was free to consider the natural relationships of the children in determining the fitness of the parties and the welfare of the minors. Upon appellate review, it is necessary that it be shown that the trial court clearly abused its discretion before a child custody order will be reversed. Herrera v. Herrera, 409 S.W.2d 395 (Tex.1966). While a natural parent usually has a paramount right to custody of a minor child, the court may award custody to some person other than a parent if such a disposition is in the best interests of the child. 20 Tex.Jur.2d Divorce and Separation § 332, p. 661, and cases collated there. From a complete review of this record, we do not find that the trial court abused its discretion. The judgment of the trial court is affirmed.