Garvin Ex Rel. Leech v. Garvin , 260 Iowa 1082 ( 1967 )

Rawlings, J.

Habeas corpus proceedings by plaintiff-aunt to recover custody of a four-year-old niece who had resided with her periodically, the last time for more than two years, and been forcibly removed from the aunt’s home by the child’s father.

From trial court’s decree adverse to defendant he appeals. We affirm.

Since each ease of this nature must be determined according to the circumstances peculiar to it alone, the factual situation must be stated at some length.

When defendant-father was about two and a half his parents died. He was reared by an aunt, Mrs. Wilma Schafnit, and her husband on a farm near Atalissa. He graduated from high school, then worked for a time on the Schafnit farm.

Later he entered military service and September 9, 1953, married plaintiff’s sister, Donna Schmelzer. Defendant adopted Darla Jean, Donna’s daughter by a prior marriage.

At time of trial Darla Jean was about 15 and lived in Muscatine with her maternal grandmother, Mrs. Buntenbaeh.

Four children were born to Jack and Donna: Debbie, Johnnie, Terry and Margaret Ann.

After discharge from the service he and his wife lived for a short time in Muscatine.

Debts overwhelmed him. In 1961 he filed a petition and secured a discharge in bankruptcy. Financial obligations continued to accumulate and at time of trial a Muscatine collection agency held about $3100 in claims against him, one having been reduced to judgment upon which an execution was outstanding.

Unable to make ends meet at farming Jack began working for a roofing company.

Donna, the wife, took employment selling Bibles in Chicago and was absent from home much of the time.

In February 1963, Jack moved the family to Wheeling, Illinois, where he worked part time.

Later Donna moved with the children to Elkhart, Indiana. Jack remained in Chicago, visiting Donna and the children about once a month. Donna was also employed and Darla Jean, then about 12, cared for the other children. Another man lived with Donna during residence of the family in Elkhart. He was present during at least one of Jack’s monthly visits.

April 15, 1963, because of Donna’s illness, she and defendant brought Margaret Ann to the Leech home. Plaintiff testified on this occasion Donna told defendant, “If anything ever happens to me, I don’t want you to remove this baby.” The child then remained with plaintiff until September when Jack came to visit and returned her to the mother in Elkhart.

Pursuant to a telephone call from Donna, Mrs. Leech went to Elkhart in October of that year and again got the child. This time Margaret Ann stayed with the Leech family until December 14 when Jack came for her.

December 29, 1963, Mr. and Mrs. Leech went to Elkhart with some presents for the Garvin children. On returning they brought Margaret Ann back to their home. This time she remained with them for more than two years.

Plaintiff contends that sometime after December 30, 1963, Donna told her, in defendant’s presence, she had cancer, and again said to him, “Jack, if anything ever happens to me, I don’t want you to remove this baby; she’s got a good home and she’s loved.”

Donna and Jack Garvin separated in September 1963. Since March 1964 he has not seen her. After Donna left, Jack placed the other children with various relatives. Because of the ages of the Schafnits be was afraid they would not be able to handle them all. Mr. and Mrs. Schafnit were then 66 and 64 years of age respectively.

In 1964 defendant filed an action for divorce from Donna. April 7, 1966, he was granted a decree. Jack knew this habeas corpus proceeding was then pending.

Defendant’s earnings in 1964 totaled $7000, and in 1965 were $5500. During 1966 he lived part time on the Schafnit farm, commuting to and from Chicago trying to establish a used ear business in Muscatine. He earned little or nothing that year.

However he and another man bought an airplane for $1900. Defendant claimed transportation to and from Chicago by air would be faster and less expensive than by car. More on this subject later.

Kenneth Leech, plaintiff’s husband, is a tool or die maker and has been employed more than 18 years by the Aluminum Company of America.

In June 1956, this couple was divorced but remarried three months later. Since then they “have gotten along fine”. These people own and live in a modern, well-kept, three bedroom home in Muscatine. At time of trial he was 40, she 39. They have two boys, one now about 19, the other 17.

Margaret Ann has become a part of the Leech family. She calls Mrs. Leech “Mommy” and has often done so in Jack’s presence. In fact he has so addressed her, and has manifested complete satisfaction with the way the Leech family cared for the little girl. This, to Margaret Ann, is her home.

Defendant has contributed nothing toward the care and support of Margaret Ann during her stay in the Leech home. He says it was impossible for him to do so. He did send the child some presents.

During the winter seasons Margaret Ann suffers from bronchitis. Friday, February 11, 1966, Jack went to the Leech residence. He had professed a desire to have all the children together for a Valentine’s party the next day. Margaret Ann was ill and in periodic need of prescribed medication.

Mrs. Leech asked that he not take the child overnight because of her health and need for special bed accommodations in order to sleep. When defendant insisted on taking the child he was asked to wait until Mr. Leech arrived home. However J ack attempted to forcibly take Margaret Ann away from Mrs. Leech. In so doing he grabbed Darlene and what may best be described as a tussle ensued. The child was screaming, “don’t hit Mommy any more”.

Finally, getting the little girl away from Mrs. Leech, defendant ran out of the house. Margaret Ann was dressed only in playclothes. He was told by Mrs. Leech that she was going to call the police. This call was made.

Jack put the child in a car and drove to the Buntenbach home in Muscatine. At defendant’s request Mr. Buntenbach tried but failed to contact Darla Joan at school.

Jack then took Margaret Ann to the Sehafnit residence. February 14, 1966, Mr. Sehafnit took Jack and the girl by car to Davenport. On his return to Atalissa Mr. Sehafnit learned that a deputy sheriff was looking for Jack with a notice. He returned the same day to Davenport and so advised Jack, who promptly left for Chicago, taking the child with him. While there he tried and apparently did sell two used cars.

During their stay in Chicago Jack and the little girl lived in a rooming house. Sometimes he took her with him to work. On these occasions Margaret Ann remained in the car until she became tired. Other times he left her with baby-sitters. However March 31, 1966, after having been granted the divorce, he returned with the girl to Atalissa.

Defendant goes to church often and drinks only occasionally. Mr. and Mrs. Leech attend church regularly and take the little girl to Sunday school. She is being given dancing and swimming-lessons.

In September 1966, Margaret Ann was scheduled to start attending the school located two blocks from the Leech home.

One witness, Mrs. Barbara Osborne, said: “I have observed Margaret Ann in the Leech home and feel that this is an ideal home for this child. She is worshipped and loved. She is considered a member of the family.” There is no contrary evidence.

Mable Bromley, another witness, testified substantially to the same effect. In fact this witness was in the Leech home when Jack came and forcibly took Margaret Ann away. She stated: “He knocked Darlene Leech against the walls, pulled her hair, was dragging her around and knocking her from side to side.”

At time of trial defendant and the other three children were living in the Schafnit home, which is modern and contains six rooms.

According to Marie Fry, a schoolteacher, Jack Garvin is interested in the welfare of his children and has talked to the teachers about them on several occasions.

Alvin N. Roberts, a retired farmer living near Atalissa, said he knew defendant, had never seen him intoxicated, has not followed him closely the last five years, but thinks well of him.

Defendant’s testimony discloses that at time of trial he planned to get a trailer house and put it in the yard of the Schafnit home. The trailer would be sitting on a slope so a basement could be put under it. He proposed to live in the basement with the boys, letting the girls live in the trailer itself. The Schafnit home would be connected by an intercom to the trailer. This way the Schafnits could keep a long-distance “listening watch” on the children.

Also in that connection defendant-father testified: “I do have an arrangement worked out with Mr. Schafnit for helping him on his farm. He is not going to pay me any money and the farming is not going to be done on shares. The arrangement is that there is work to be done and I am going to help him. He is helping me with the children and that is the only arrangement. What money I will need I will make in the car business. It is difficult to say how many cars I will sell per week until I get it set up, which I would have had by now without this delay. At this time, I do not rightly know what I have to do about setting it up. I have to talk to a guy in Davenport that I have tried to contact on two occasions but he has been on the road. I have people to sell the ears for me and this is my system. The arrangement that I have is that I can buy cars at wholesale prices from various dealers that I have been associated with. There is no place in the United States that ears come in for any less money than Chicago. This I know from being in the business. In Chicago, there is a huge markup on cars. As an example: I bought a car for $275.00 and brought it back to Iowa with me. I spent $1.00 getting it washed and I had my brother sell it and he sold it for $525.00. He didn’t even know how to sell a car. The man I am attempting to contact in Davenport, sells cars through his home. Some of the cars which come from Chicago will be driven here directly by myself. In regard to the airplane, I was going to use this to keep in touch with my cars financially which were located in the various cities. This might, for instance, necessitate myself flying to Chicago. Mainly, my flying would be in connection with arranging for a certain purchase which could possibly save me $150.00 to $200.00 on a car. I do not have a pilot’s license, however. I was planning on getting one. I have never flown this plane by myself and I have never flown it for pleasure. I have never taken any lessons of the type that you would pay for. The extent of my lessons has been to fly with this group of individuals. I would put the gas in the plane, which was $3.00 an hour, and they would let me fly. In order to use that plane, I would have to abide by the laws and get a license. I figured this would cost between $1;-600.00 and $1,800.00 with the fuel included. I would also have to pass various flying tests and navigation tests.”

Darla Jean, adopted daughter, testified she carried Margaret Ann out of the courthouse at defendant’s direction after the habeas corpus hearing. She said the little girl was then yelling “I want my Mommy”, meaning she wanted Darlene, the plaintiff in this case, because she talks about her all the time. As Darla Jean stated, the only home Margaret Ann has ever known is with Darlene and Kenneth Leech.

The trial court found the Leech home to be suitable and proper; Margaret Ann had lived there at various times prior to December 1963, and had resided with the Leech family more than two years prior to the hearing; to the child, plaintiff is her mother; Margaret Ann personally wants to stay in the Leech home where she is loved, contented and secure. The child was in fact returned to plaintiff. As a result she has since been and is now living with Mr. and Mrs. Leech.

I. This being a habeas corpus action involving custody of a child it is reviewable de novo. Halstead v. Halstead, 259 Iowa 526, 144 N.W.2d 861, 864. We give due weight and consideration to the findings of the trial court but are not bound by them. Rule 344(f) (7), R. C. P.

II. In cases of this nature the first and governing consideration of the courts must be the best interest of the child. Rule 344(f) (15), R. O. P. This proposition is so well established that authorities need not be cited in support of it. See, however, Halstead v. Halstead, supra; Alingh v. Alingh, 259 Iowa 219, 144 N.W.2d 134, 138; and Painter v. Bannister, 258 Iowa 1390, 140 N.W.2d 152, 156.

In keeping pace with apparent advances by the behavioral sciences concerning benefits to' children of a wholesome, loving and secure homelife, free from the trauma of needless transplantations, a majority of the courts hold there should be no automatic determination in favor of a parent.

And it has been said the “natural right” concept restricts thoughtful inquiry into latent problems of child development and should not be permitted to control, especially when the non-parent has occupied a loco parentis position for such a time as to become the true “parent by association”.

In some instances an attempt has been made to resolve the problem of child custody by adoption of a biological approach premised upon the assumption a child’s interests will per se be best served by residential association with others of the same bloodline. But in most cases this is nothing more nor less than the “natural right” theory in different garb. Stated otherwise the exclusive use of either of these relatively rigid approaches will usually produce the same net result.

The determination of all controversies of this nature requires a judicious approach, free from the taint of any thought of reward or punishment, the polestar being always the welfare of the child.

See authorities cited in Halstead v. Halstead, supra, and March 1967 issue, Family Law Quarterly, Volume I, No. 1, page 3, issued by American Bar Association, Family Law Section.

III. We have always been deeply concerned when confronted with the vitally important matter of child custody. And in recent years have consistently employed the best interest of the child concept in resolving all such conflicts. In cases of this nature courts should give due weight to the rights of a natural parent, balancing against that the child’s best interests. This we have heretofore done. This we should continue to do.

In Painter v. Bannister, supra, five-year-old Mark was temporarily placed with maternal grandparents following death of his mother. During a two-year residence with the Bannisters the boy developed a strong identification with them and an acceptance of the grandfather as a “father figure”. We held Mark’s adjustment to life with the grandparents and danger of psychological impact of any reversion to an unstable life with the father dictated the boy be left with Mr. and Mrs. Bannister in the only home he had really ever known.

Alingh v. Alingh, supra, discloses injury to children during infancy by a mentally ill mother resulted in their placement with the paternal grandparents. This court determined, in an. action by both parents to regain custody, the best interests of the children would be served by letting them continue to reside with the grandparents.

Then in Halstead v. Halstead, supra, we were confronted with an attempt by a mother to secure custody of a son who had lived with his paternal grandparents about ten years. Many respectable authorities giving strong support to the child oriented best interest concept are both quoted and cited. It is also there disclosed that the best interest of the child guideline is looked upon generally as being more realistic, modern and flexible than the so-called parental supremacy doctrine. Holding the child should remain in the only home he had ever really known this court there said, loc. cit., 259 Iowa 531, 144 N.W.2d ggq. “* * * we have consistently taken the position it is highly desirable the status of a child be fixed as quickly as possible, be thereafter disturbed as little as possible, and then only for the most cogent reasons.

“Also, if the person having lawful care of a child at the time its custody is sought to be changed has properly provided and supervised its social, moral and educational needs for a substantial period of time, and the child has become attached to the environment and the people who have made possible the happiness, security and comfort of its early years, a court is not justified in transferring that custody to another except for the most cogent reasons. * * (Emphasis supplied.)

Painter, Alingh and Halstead, supra, are not only in point but also here most persuasive.

Referring now to Lancey v. Shelley, 232 Iowa 178, 2 N.W.2d 781, this court, confronted with a factual situation similar to that presented here, denied the father and his second wife custody of a child where the evidence disclosed the petitioners were planning establishment of a home but had none to which the child could be taken at time of trial.

And in the leading case of Jensen v. Sorenson, 211 Iowa 354, 233 N.W. 717, a custody seeking father had arranged for an aunt and uncle to care for his son in event the court granted him the relief sought. In denying custody to the father we noted the speculative arrangement made in the nature of securing a home for the child was at best uncertain and subject to failure at anytime.

In that regard we said in Jensen v. Sorenson, supra, loc. cit., 211 Iowa 364: “It is important, as wé have often said, that the custody of a child should be determined promptly, and that it should be permanent. The child must be given a place to grow. It should not be too readily transplanted. Nor should it be tossed like a ball from base to base. For three years this child has been growing in the Sorenson family, and has found affection there. In our judgment, no adequate reason is shown in the record for a change of custody, unless it should be held that the father has a primary right to such custody. In cases where others than the parent have maintained the care and custody of a child and have become bound to it in affection, we have not infrequently held the rights of such custodian to be paramount to the rights of a parent, in a given ease.”

IV. The precedent last cited has many times been approved by this court. It is also well established in this jurisdiction a child should not be compelled to exchange for known love, companionship and security in a suitable and proper home the uncertainties of a speculative, conjectural and sometimes frightening future. Halstead v. Halstead, 259 Iowa 526, 144 N.W.2d 861, 867.

As in the Halstead case the child here concerned has already been subjected to the emotional experience of being shunted too often from one home to another for no reason attributable to her or this plaintiff.

In that regard Margaret Ann’s mother evidenced an awareness of the adverse effect of repeated transplantations of the child by her twice declared desire the child be left in the Leech home. While these requests may not be here controlling they are entitled to some consideration. See In re Guardianship of Carrick, 250 Iowa 1181, 1187, 98 N.W.2d 315; Finken v. Porter, 246 Iowa 1345, 1348, 72 N.W.2d 445; Joiner v. Knieriem, 243 Iowa 470, 482, 52 N.W.2d 21; Lancey v. Shelley, 232 Iowa 178, 186, 187, 2 N.W.2d 781; and Jensen v. Sorenson, 211 Iowa 354, 361, 362, 233 N.W. 717.

Furthermore defendant testified he told Mr. and Mrs. Leech in March 1964, at the time Donna left him, he was leaving Margaret Ann with them until he could provide and care for her, and give her a proper home with the rest of the children. This conversation, according to defendant, was repeated two or three times afterwards. But there is no evidence disclosing he has such a home as referred to in these conversations.

To now remove Margaret Ann from the Leech home to a presently nonexistent trailer house with an intercom “listening-in arrangement”, would only serve to expose her to the hazards of another change, not understandable to a child of tender years, the impact of which may well be indelibly imprinted upon the mind and personality of this little girl for the rest of her life.

V. In the case now before us defendant-father: (1) Has no home; (2) no means with which to secure one; (3) his plans for establishment of a home are both conjectural and uncertain ; (4) even in event of fulfillment, those plans are subject to change or termination at anytime; (5) he has admitted prior doubts as to the ability of his aunt and uncle, the Schafnits, to care for the Garvin children; and (6) the well-meant intentions expressed by defendant cannot at best be said to offer Margaret Ann a suitable and secure substitute home.

On the other hand Mr. and Mrs. Leech: (1) Have accorded and will continue to provide Margaret Ann a suitable and proper home with the only mother she has really ever known; (2) with no emotional trauma inflicted upon her by a premature transplantation; (3) she will be and remain in a wholesome atmosphere where love, understanding and security have become a stabilizing factor in the life pattern of the child; and (4) where the girl may grow and develop free from the uncertainties of the speculative life and home environment inherent in the sup-positional hopes and plans of this defendant.

VI. This opinion is not an adjudication against the right of defendant to custody of Margaret Ann at such future time as showing is made he has a suitable and proper home for the child and it will be in her best interests to be placed in such home.

However we find no cogent reasons which compel or even justify her removal from the Leech home at this time.

It is to us apparent the trial court’s decree is in accord with the greater weight of the evidence; is in keeping with the humanities of the case; and consistent with rule 344(f) (15), R. 0. P., as repeatedly construed and applied by this court.

At the same time we are satisfied defendant is, in all fairness, entitled to reasonable visitation rights with the child and the trial court's decree should be accordingly modified.

We affirm, with modification as to visitation rights to be accorded defendant which shall be fixed and prescribed by the trial court.

Affirmed as modified and remanded for further order consistent with this opinion.

Garfield, C. J., and Larson and Snell, JJ., concur. Stuart, J., concurs in Divisions V and VI and the result. Mason, Moore and Becker, JJ., dissent.