McGraw v. Rose

Grieein Smith, Chief Justice. James Lloyd Rose and his wife, Betty — whom he married in 1948 — had one child, Allan Gale, now five and a half years of age. James Lloyd died in September, 1953. At that time he was living with his mother. His own father had died more that} fifteen years ago and in 1940 or 1941 his mother married Lonnie Rose, who was Mrs. Rose’s first husband’s brother. She is 49 years of age and Lonnie is 61. The child, Allan Gale, has been with its paternal grandmother and her husband for some time. Following her remarriage Betty sought by habeas corpus to regain custody of her child. The writ was dismissed and we treat the cause as having been brought up by certiorari for review. For some time after their marriage in 1948 James Lloyd and Betty lived with Betty’s parents at Grand View, in the state of Washington. James Lloyd was addicted to drink, according to Betty’s testimony, and failed to provide the reasonable necessaries of the home. He also incurred obligations beyond current means. In October, 1949, when the baby was about eight months old, Betty and her husband came to Arkansas and lived with James Lloyd’s mother and his step-father at Cedarville for a period of six months. Betty’s testimony is to the effect that the grandmother and her husband quarreled a great deal. At the end of eight months Betty left for a visit with her parents in Washington. She had concluded that her marriage was a failure, and intended to leave James Lloyd and procure a divorce. Her husband, however, refused to allow her to take the baby. His action in this respect was encouraged by other members of the family. Mrs. Lonnie Rose had physical possession of the boy. Betty remained in Washington a week, then borrowed money and returned to Arkansas. She was accompanied by her mother and an uncle. Betty’s version of this transaction is that, with the uncle, she went to the Rose home, picked up the boy, and asked where his father was. She was told that James Lloyd was in the garden, but “Instead of going to see the baby’s daddy I just went to the state of Washington.” Two months latex- James Lloyd went to Washington to detex-xnine whethex- his wife would x-eturn. There was a x-ecoxxciliatioxx to the extent that Betty went with her husband to Susanville, California, remained there for eight or xiixxe weeks, and then a second separation occurred. According to Betty’s version of discomfitures axxd matters rendering her situation intolerable, ‘ ‘ Grocery bills were piling up and I didn’t know whether we were goixxg to get credit axxy more. I had made arrangements to sell my rings axxd silverware and take my soxx back to Washington to my parents. I was going to do this while Jaxnes Lloyd was at work, but he found out from some oxxe what I intended to do axxd told me I could leave, but that I couldxx’t take Allen Gale. . . . He told me that if I tried to take the baby he would shoot me, [and] he was the type I was scared enough of to believe he would do it. He had a police record.” Betty testified that she left for Washixxgton to join hex- parents, fearing to take the child. About a year later she sued for divorce. In the meantime — possibly three or four moxxths after leaving her husband — Betty began keepixxg company with Robert Paul McGraw, who was also married, but separated from his wife. His former wife visited with him ixx the home of Betty’s mother and father. The divorce proceedings ixx Yakima couxxty, Washington, were attended by James Lloyd, who was represented by an attorney. When at the first hearing it developed that the baby was not within the court’s jurisdiction an adjournment was ordered, the purpose being to permit the father — -under court direction — to bring the child to Washixigtoxx. This was xxot done, and at the second hearing the judgment in Betty’s favor was for custody of the child, $50 per moxith support money, and cost of the action, includixxg an attorney’s fee. The petitioner’s husband, Robert Paul McGraw, owns 160 acres of productive farming land near Masonville, Iowa, and receives from this property $2,000 or more per year, in addition to the agricultural products personally used. Lonnie Eose and his wife rent their home. For a time Mr. Rose worked as janitor at one of the schools, but he is a world war veteran and draws monthly compensation of $70. When Mrs. Rose was asked regarding her husband’s physical condition her answer was that he was extremely nervous. At one time he had taken carbolic acid and was sent to a hospital. There is evidence that the sons of her first marriage, or at least some of them, had drinking habits and were not always within the law. On the whole, however, the record fails to disclose anything but a sincere purpose on Mrs. Rose’s part to do the best by the child that circumstances will permit. Some of the witnesses thought that on one or two occasions Mrs. McGraw had punished the child to spite her husband and had gone so far as to attempt to choke it. The evidence on that point is not at all convincing and we doubt that the Chancellor gave it serious weight. If testimony of the grandmother and others interested in her point of view is to be accepted, Mrs. McGraw abandoned her child. But the mother’s explanations regarding marital difficulties and references to the unfavorable economic position into which she was thrust go far to discount the contention of abandonment. The law’s policy is to permit children to remain with their parents unless there is the most compelling reason for deviation from this normal social status,; and this rule is ordinarily emphasized when small children are concerned. Unless abandonment is clearly shown, or unless unnatural proclivities upon the part of parents is established, such as cruelty or negligence amounting to parental indifference, the superior claim of a father or mother is given first consideration. Hancock v. Hancock, 198 Ark. 652, 130 S. W. 2d 1; Hazelip v. Taylor, 209 Ark. 510, 190 S. W. 2d 982. In the case at bar the father is dead and the mother and her present husband are shown to be economically able to rear the child in an environment, we think, more conducive to good citizenship than would be the case if the grandmother and Lonnie Rose were permitted to retain custody. Reversed, with directions that the writ be granted.