Meyer v. Christler

The opinion of the court was delivered by Burch, J.: The action was one by the petitioner to obtain custody of his infant daughter. Judgment was rendered in his favor, and the respondents appeal. The child’s mother died when it was about six weeks old. Just before her death the mother expressed a desire that her parents, the respondents, take the child, and they did so. They have cared for it in a manner entirely compatible with its welfare, and doubtless the child would be well nurtured if left with them. The child’s father, however, has established his residence in another city, and desires his daughter to be with him. He has provided a home, which is shared by his mother and two young sisters. He is of high character, is able to provide for the child fully as well as the respondents, and has done nothing to forfeit the claims with which nature and the law endow him. The respondents hope for an early improvement in their financial affairs, but the father is competent to support this child, two and one-half years old when the trial occurred, is a young [672] man, and has prospects of advancement before him. The dying mother’s request was doubtless wise and proper at the time, but she had no authority to dispose of the baby permanently. Probably she had no thought of doing so, and concurrence of the father in the request did not preclude him forever. In making its finding of fact regarding the welfare of the child the court appears to have been guided by the principles announced in Swarens v. Swarens, 78 Kan. 682, 97 Pac. 968, In re Hollinger, 90 Kan. 77, 132 Pac. 1181, and other decisions of this court of like tenor. The finding is approved, and the judgment awarding custody of the "child to its father is affirmed.