Wood v. Beard

This is a habeas corpus proceeding brought by the mother of a two-year-old daughter against the child’s maternal grandparents. We granted writs to review the decision of the Court of Appeal (280 So.2d 567) affirming the district court which held that the “best interests” of the child required that she remain with the grandparents.

The evidence is not in conflict. Four witnesses testified at the trial: plaintiff, the mother; defendant, the grandfather; the grandfather’s employer; the grandfather’s landlord.

The baby was born August 13, 1970 in New York, while plaintiff was in custody awaiting extradition to California. Plaintiff and her husband had lived in California since 1968. As the result of an altercation with their landlord, plaintiff and her husband were charged with several criminal offenses and fled to New York. Upon being returned to California, plaintiff pleaded guilty to assault and was sentenced to one year in jail, with credit for time served (more than a year) and placed on probation. Plaintiff was involved in no other criminal activity either before or after that occasion.

Five weeks after the infant was born in New York, plaintiff released her child to her parents until she could care for her. When plaintiff was released from jail in California in June, 1971 she returned to Alexandria and spent a month with her parents and child. She desired to return to California, however, where her husband was still in jail, but her parents refused to allow her to take the child. Plaintiff returned to California, obtained employment and satisfactory living accommodations. She then telephoned her parents and was again refused the custody of her child.

Plaintiff testified that she then consulted an attorney who, after three months time, advised her to come to Louisiana and take her child, advice rejected by plaintiff because she “wanted to go through court to make sure everything was right.” She then obtained assistance from the Legal Aid Society of Baton Rouge, who filed suit on her behalf on April 6, 1972.

The question to be decided is whether this mother is to be deprived of the custody of her infant child because it is to the child’s “best interest” to be placed with the grandparents. Neither the trial court nor the Court of Appeal found the plaintiff to be unfit; nor did they find that she had forfeited her right to parenthood; nor did they find that the mother was unprepared or unable to provide a home for her child. Both courts repeated the correct rule of law — that the parent has the paramount right to the custody of the child, and may be deprived of that custody only when there are compelling reasons. The trial court, apparently comparing the abilities of the mother and the grandparents to care for the child, concluded that custody in the grandparents would serve the best interest of the child. The Court of Appeal called this a factual issue and declined to overturn the ruling of the district court.

It is in the best interest of the child of tender years to grant custody to the mother unless the mother is unfit or otherwise unsuitable. Fulco v. Fulco, 259 La. 1122, 254 So.2d 603 (1971) and cases there cited. In the application of this rule it is not appropriate for the court to compare the mother’s home with another when the mother and her home are acceptable, and then award the custody to the contestant who can provide greater advantages for the child. State ex rel. Rothrock v. Webber, 245 La. 901, 161 So.2d 759 (1964) ; State ex rel. Perdue v. Carkuff, 182 La. 920, 162 So. 729 (1935). The best interest of the minor is not served by de-' nying parental custody after deciding which of two qualified, competing family groups can deliver a quality of child custody more pleasing to the court. A judicial comparison of qualified competitors for custody of a child does violence to the rule of “parental right.” (See Blow v. Lottman, 75 S.D. 127, 131, 59 N.W.2d 825 (1953): “If the mother is a fit parent she cannot be denied custody of her children even though the grandmother is better qualified to rear them.”).

When the parent competes with non-parents of the child, the parent’s right to custody is superior, unless the parent is unable or unfit, having forfeited parental rights. State ex rel. Martin v. Garza, 217 La. 532, 46 So.2d 760 (1950); State ex rel. Simpson v. Salter, 211 La. 918, 31 So.2d 163 (1947); State ex rel. Martin v. Talbot, 161 La. 192, 108 So. 411 (1926); Ex parte Lincoln, 128 La. 278, 54 So. 818 (1911). See also State ex rel. Lombardo v. Miller, 232 La. 617, 94 So.2d 888 (1957). No such forfeiture has been found' by either court below, and- the evidence will not support such a finding. Nor will the evidence support a conclusion that custody in the parent will be inimical to the welfare of the child.

Plaintiff cites the recent case of Griffith v. Roy, 263 La. 712, 269 So.2d 217 (1972), and argues from it that the district court had no “jurisdiction to deprive rela-trix of the custody of her child” during the marriage. We do not agree. The district court may do more than inquire into the parentage of the child in a habeas corpus action, but should order the child “placed in the custody of a proper person.” C.C.P. 3830. To order a child placed in the custody of a parent who is not “a proper person” would be to ignore the welfare of the child. The welfare of the child, and not simply the enforcement of a parental right to the possession of the child, is of primary concern to the court. It is consequently appropriate that the district court inquire, when the issue is raised, whether the parent is unfit or unable to care for the child.

Plaintiff argues that only the juvenile courts have jurisdiction to interfere with parental authority. This is too narrow an interpretation of Griffith v. Roy, supra. We have previously held that the juvenile courts do not have jurisdiction over a dispute between private litigants for custody of a child not within the purview of R.S. 13:1570 et seq. In re Sherrill, 206 La. 457, 19 So.2d 203; 19 Tul.L.Rev. 464. Plaintiff’s ultimate argument is that the result of Griffith v. Roy, supra, is that no court may inquire into the fitness of a parent seeking custody while the marriage is in existence and there is no separation or divorce action pending. This argument ignores the universally recognized proposition that the state and its courts are always concerned with the welfare of the child.

At the instance of the plaintiff, the Court of Appeal granted a rehearing and considered the effect of Griffith v. Roy, supra, upon the case now before us, and concluded that the district court was not without jurisdiction to consider the fitness of the mother in a habeas corpus action brought by her. With this ruling we agree, but we do not agree that the mother should have been deprived of the custody of her child.

Plaintiff has a home, a job, friends who help her, and satisfactory arrangements for the care of her child while she works. Her conviction for assault does not alone, make her unfit to care for her child. The burden is on the defendants to show the disqualification and unfitness of the mother. Heitkamp v. Ragan, 142 La. 81, 76 So. 247 (1917). This heavy burden the defendants have failed to discharge. The courts below erred in holding that the best interests of the child required denying custody to the mother.

For these reasons the judgment of the Court of Appeal is reversed and there is now judgment in favor of plaintiff, Patricia Beard Wood, and against defendants, Mr. and Mrs. Edward S. Beard, ordering that the child, Abre Lee Wood, be placed in the custody of plaintiff, all at the cost of defendants.