193 La. 789

#### STATE ex rel. LANDRY v. ROBIN.

No. 35294.

Supreme Court of Louisiana.

June 26, 1939.

On Rehearing Nov. 27, 1939.

*350Guidry & Willis, of St. Martinsville, for relator and appellant.

Paul S. Daspit, Jr., of St. Martinsville, for appellee.

LAND, Justice.

Relator, Clifford Landry, was married to Isore Robin on or about December 11, 1937. Of this marriage, one child, Laurma Grace Landry, was born in September 1938, after the separation of relator and his wife, and after her return to the home of her parents, Anthony Robin and his wife, the maternal grandfather and the maternal grandmother of-the child, whose mother died in the month of January, 1939.

The present proceeding is by writ of habeas corpus issued by relator against Anthony Robin, respondent, to obtain the custody of the child, who was of the age of six months, when the writ was issued.

After having listened very attentively to the evidence in the case, the - trial Judge dismissed the writ of habeas corpus. Relator has appealed.

The reasons for dismissing the writ, as stated by the trial Judge, were that the child was only six months of age and had been cared for since its birth by the grand- • father, and especially by its grandmother, and that it was to the best interest of the child to let it remain, at this time, with its grandparents. ,

The trial Judge also declared, in his reasons for dismissing the writ, that it would be absolutely an injustice, and would be really taking a chance, to remove a child of such tender age from the custody of its grandparents, and to place it with a sister *of*relator and her husband, with whom relator lived, notwithstanding the fact that they might take care of the child, “as they thought correct.”

In his reasons for judgment,' the trial Judge recognizes that, under the law of this State, the parent has a paramount right to the custody of the child, under ordinary conditions, where the child is two or three years old, or older, and stated that, after the child has grown older, the chances are that the parent would be entitled under the law to the custody of the child.

In other words, the trial Judge *knew*• that the child was being cared for properly by its grandparents, and declined, because of the tender age of the child, a mere infant six months old, to take any risk as to its welfare, by changing its custody, and placing it elsewhere, merely because the father came into court to ask for the possession of the child.

It has been said that “the Judge is the Tutor of all the Tutors,” and it may be well and truly added, that “the Grandmother is the Mother of all the Mothers.”

The trial Judge well knew, as this court knows, that the health, comfort, and welfare of the infant of her dead daughter were safer in the loving arms of its devoted grandmother than it could possibly be in the hands of the sister of relator, who has no children of her own, and who besides is a stranger to the child.

Though a father is, as a matter of right, entitled to the tutorship and posses*351sion of his children, his right in that respect is not unquestionable or absolute.

Necessarily, a reasonable latitude must be left to the trial court in determining matters affecting the welfare of children and its views upon the facts surrounding any given case are entitled' to much weight.

In the case of State ex rel. Peter v. Stanga et ux, 161 La. page 978, 109 So. 783, this court affirmed the district court, in the exercise of such reasonable latitude, in the following language:

> “We think the exceptional features of this case.remove it from the grasp of the codal articles and decisions relied upon .by relator. The real issue involved, as we view it, is not so much whether the cold technical right of the father to the possession of his child should be maintained, as it is whether, from the standpoint of the welfare of the child, she should be permitted to remain in the care of her grandmother or be committed to the care of her stepmother. This issue must be resolved in favor of the grandmother. She is experienced in raising children; having had nine children of her own. She has taken the place of the child’s mother since her birth, has nursed her in sickness and cared for her in health, and is the only mother the little girl has ever known. On the other hand, while there is nothing to show the child would not be kindly treated in her father’s home, in the very nature of things she cannot receive the same care and attention there.

> “Relator, in the pursuit of his business affairs, is frequently absent from his family at night as well as in the day. During these absences, his wife and child are alone. The present Mrs. Peter admits she has had no experience in raising children, and, being engrossed with her household duties and the care of her own small child, no matter how well-intentioned she may be, it is manifest she is not in position to properly look aft.er her stepdaughter.

> “Every humane consideration suggests that the child should not, at this time, be separated from her devoted grandmother.”

The underlying principle of the decision in the Peter’s case, cited supra, is that the cold technical right of the father to the possession of his child must yield to the welfare of the child, in a case whose exceptional features satisfy the court that the welfare of the child will be endangered.

In not one of the cases cited in his brief does relator present a single decision of this court, in which an infant, only six months old, was taken from the custody of the grandmother, regardless of its welfare, and restored to the custody of the surviving father.

In all of the cases cited by relator, the ages of the children, whose custody was sought by the father, as against the right of the grandmother to such custody, are 4, 5, 5%, 6, 8, 9 and 10 years.

The laws of this State relative to the care and custody of minor children have never been construed by this court as severe and inflexible laws of Draco, but, on the contrary, have been enforced, in the light of humane considerations, where the welfare of the child is clearly concerned.

We agree with the trial Judge in his conclusion that the welfare of the infant in this case requires that it remain, for the present, in the care and custody of its grandparents.

The judgment appealed from denies the application of relator for the custody of his minor child, and dismisses the suit and habeas corpus proceedings at plaintiff’s costs.

The judgment appealed from is affirmed, at the cost of relator, with the reservation of the right of relator to visit his minor child and have her visit him at any time he so desires.

HIGGINS, J., dissents.

FOURNET, J., dissents and hands down reasons.

PONDER, J., dissents.

FOURNET, Justice

(dissenting).

This is a habeas corpus proceeding instituted by relator, Clifford Landry, to obtain the custody of his infant daughter, less than six months old, who is in the possession of the respondent, Anthony Robin, relator’s late wife’s father.

Respondent, in his answer, claimed that he is entitled to the custody of the child for the reason (1) that he is her maternal grandparent, has taken care of and supported her since her birth and is willing to continue to provide' and care for her; (2) that her father, relator, is not deserving of the trust of having the custody of his minor daughter because (a) he aban*352doned his wife, (b) that from the date of their separation until the date of his wife’s death he failed to provide for her, (c) that he did not pay any of the expenses incurred in her illness prior to and at the time of the birth of the child, all of which was provided for by respondent, (d) that he showed no interest in the child prior to the institution of these proceedings; and finally (3) that the child was left with respondent by its mother and that it is for the best interest of the child’s physical, as well as moral, welfare that she remain with respondent.

The trial judge awarded the custody of the child to respondent and relator has appealed.

The facts of the case, as disclosed by the record, show that relator was married to Isore Robin in December of 1937 and was separated in January of 1938, apparently for mutual cause or fault, the wife thereafter living with her parents, where, on September 3, 1938, the child, Laurma Grace Landry, was born. On January 19, 1939, relator’s wife died, and on the 23d day of February following, respondent having refused to surrender the custody of the child upon relator’s request, these proceedings were instituted.

> “It is the well-settled jurisprudence of this state that the courts are not authorized to interfere with a parent’s authority over his children, except if ‘the court is satisfied that he (or she) will neglect them, or expose them to improper influences, in which case the paramount interest which society has in seeing to it that they be well taken care of and properly brought up would justify the court in making some other disposition of them.’ ” State ex rel. Perdue v. Carkuff et al., 182 La. 920, 162 So. 729. See, also, Ex parte Lincoln, 128 La. 278, 54 So. 818; State ex rel. Martin et al. v. Talbot et ux., 161 La. 192, 108 So. 411; State ex rel. Bethany v. Corley et ux., 172 La. 266, 134 So. 87; and Article 216 of the Revised Civil Code.

> “The law clearly makes it the *privilege and the duty of the father*to rear and provide for his children. * * * We have held: A judge has some discretion over the care and custody of children; but it has to be exercised on solid and substantial grounds. Nor can the fact that other people are attached to the child, or that the child is .attached to other people, or that the ability of other people can better provide for the care, etc., of the child deprive the father of his parental right and authority to have the care and custody oí his own child. * * * *The burden is on those resisting the father to show his disqualification and unfitness to have the care and custody of his children.** * * ‘The discretion to be exercised is not an arbitrary one, but in the absence of any positive disqualification of the father for the proper discharge of his parental duties, he has, as it seems to us, a paramount right to the custody of his infant child, which no court is at liberty to disregard. And while we are bound also to regard the permanent interests and welfare of the child, it is to be presumed that its interests and welfare will be best promoted by continuing that guardianship which the law has provided until it is made plainly to appear that the father is no longer worthy of the trust. The breaking of the ties which bind the father and the child can never be justified without the *most*solid and substantial reasons.’ ” Heitkamp v. Ragan et al., 142 La. 81, 76 So. 247, and the authorities therein cited. (Italics ours.)

The trial judge, in his written reasons for judgment, in which he is supported by the majority opinion, stated: “ * ** * there is no doubt under our law that the parents have a perfect right to their children*and under ordinary conditions where a child is two or three years of age or older then there is no doubt in the world but that the law of our state would grant and give that child to the parents unless there was some good reason for not doing so, but *in this case we know that the child is being cared for by its grand-parents and to place it with a sister of the husband and her husband would be really taking a chance not that they would not take care of the child as they thought was correct, but it is really a chance when you take a child sis; months of age and place it elsewhere*just because the father comes into Court to ask possession of the child, the Court is not going to grant to the father the possession of this child at this time. * * * ” (Italics ours.)

There is nothing in the majority opinion of this court, or that of the lower court, pointing out any evidence to show the disqualification or unfitness of relator to have the custody of his infant daughter, which is h’is by natural right and by the express provisions of the Revised Civil Code, Articles 216 and 250, and none can be found in the record.

*353The evidence shows that relator comes from good people, is an upright and hardworking young man, a tenant farmer of moderate circumstances, and resides with his sister and brother-in-law. On the other hand, his father-in-law, respondent here, was without employment at the time this suit was tried, and, when employed, earns his living by waiting on tables in restaurants.

The record further reveals that plaintiff testified that his wife, after leaving him, lived with another man, leaving the inference that she did so at the residence of her mother and father. In this he was not contradicted, even though respondent and his wife and other witnesses also testified in these proceedings. Moreover, the evidence discloses that there is a decided enmity existing between relator, respondent, and respondent’s wife.

The case relied on in the majority opinion, State ex rel. Peter v. Stanga et ux., 161 La. 978, 109 So. 783, is inapplicable. In that case the child whose custody was sought was seven years of age. Its formative years had been spent with the maternal grandparents with the consent of the father, and the court, because “ * * * the exceptional features of this [the] case remove it from the grasp of the codal articles and decisions relied upon by relator * * * ” concluded it was to the best interest of the child to permit it to remain with its grandparents. In this case the child is an infant, its formative years just ahead, and no extenuating circumstances have been either shown or proved that would disqualify the father as the legal and natural custodian of his child, either because of neglect or exposure to improper influences. On the contrary, there remains the fact that the grandparents who are seeking to retain custody of the child are the parents with whom the deceased wife stayed while, under the uncontradict-ed testimony of the relator, she was living in adultery with another man during the months just prior to the birth of the child.

Besides, I can think of nothing that would do greater injustice to all parties concerned, including the child, than to allow her to remain until she is two or three years of age with her grandparents, with whom it is only natural a mutual love and attachment will be formed, and to then suddenly place her in the custody of her father, to whom she will probably be a total stranger and against whom she will possibly be influenced and prejudiced in view of the enmity existing between the respondent’s family and the relator.

For the reasons assigned, I respectfully dissent.

On Rehearing.

O’NIELL, Chief Justice.

This is a contest between the father and the maternal grandfather for the custody and care of a girl baby, whose mother is dead. The child is now less than fifteen months old. She was six months old when the case was tried, and was then and is yet in the care of the maternal grandparents, at whose home her mother died. The grandparents refused to surrender the baby to the father; and in his answer to this suit the grandfather avers that the father should not have the care or custody of the child, for the reason that he abandoned the mother a short time before the child was born, and thereafter neglected to support the mother and child, and neglected even to furnish them with medical attention, or with the necessary medicines, during the mother’s last illness; and that the father has no home of his own, and is only permitted by his sister and her husband to reside in their home. After hearing the evidence the judge of the district court gave judgment for the defendant, refusing to give the child into the keeping of her father, on the ground that it would be unsafe for the child’s health to remove her from the care of her grandparents.

On the first hearing of the case we affirmed the judgment, reserving to the father the right to visit the child and to have her visit him whenever he so desired.

In his petition for a rehearing the father asked, first, of course, for a reversal of the judgment, and, in the alternative, he asked to be allowed to set up his claim for the care of the child again hereafter in this suit, so as to avoid court costs.

There is no dispute about the law of the case. The right to the care and custody of a minor child whose mother or father is dead is granted by law to the surviving parent unless it is proved that he or she is disqualified by unfitness or inability to care for the child. State ex rel. Kearney v. Steel, 121 La. 215, 46 So. 215, 16 L.R.A.,N.S., 1004; Ex parte Lincoln, 128 La. 278, 54 So. 818; State ex rel. Sevier v. Sevier, 141 La. 60, 74 So. 630; Heitkamp v. Ragan, 142 La. 81, 76 So. 247; *354State ex rel. Harper v. Tebault, 147 La. 889, 86 So. 320; State ex rel. Martin v. Talbot, 161 La. 192, 108 So. 411; State ex rel. Monroe v. Ford, 164 La. 149, 113 So. 798; State ex rel. Bethany v. Corley, 172 La. 266, 134 So. 87; State ex rel. Perdue v. Carkuff, 182 La. 920, 162 So. 729; State ex rel. Burleigh v. Savoie, 176 La. 115, 145 So. 285, and Id., 185 La. 985, 171 So. 98.

But the evidence in this case leaves a grave doubt as to whether the father is financially and otherwise prepared to take care of his child, — especially in her infancy. On the other hand, if the father is able to care for the child, and if it would be safe to remove her from the care of the grandparents, it would be unjust to leave her in their care long enough for her to become so attached to them that it will grieve both her and them all-the more when the time comes for her to go to her father. The responsibility which the law imposes upon us in such a case is a very grave responsibility, — particularly in this case, where there is so much doubt about the father’s ability to care for the child as safely as the grandparents can care for her. The case is made more difficult by the fact that the grandparents and the child were not represented. by counsel in this court, either on the original hearing or on the rehearing. The attorney who represented the grandparents in the district court did not appear in the supreme court, either to argue the case or to file a brief. The reason for that was that the attorney employed by the defendant was employed to represent him in the district court only. Hence the attorney is not to be blamed for the fact that the grandparents and the child have not been represented by counsel in the supreme court.

We have concluded to remand this case to the district court for the introduction of more evidence on the question of the father’s ability or inability to care for his child, and upon the subject of the environment in which the child lives now, with her grandparents. In that connection we instruct the one of the two judges of the, district court who will handle this, case to appoint a suitable person — preferably a woman field worker for the Department of Public Welfare — to visit the home of the grandparents, and the home of the father of the child, and to report under oath to the court all of the facts found, that may be relevant to the question whether the child shall be left where she is for the time being, or shall be given now into the care of her father. After hearing the report and such additional evidence as may be available, the judge shall render such judgment as the facts will justify.

This case is ordered remanded to the district court for further proceedings consistent with the instructions which we have given, and for that purpose the judgment appealed from is set aside.

HIGGINS, J., dissents.

FOURNET, J., dissents and hands down reasons.

FOURNET, Justice

(dissenting).

Under the express provisions of the Revised Civil Code and under the jurisprudence of this state, the custody of a minor child, upon the death of either parent, belongs *of right*to the other, and the courts have no right or authority to divest the parent of this right “* * * except if ‘the court is satisfied that he (or she) will neglect them, or expose them to improper influences, in which case the paramount interest which society has in seeing to it that they be well taken care of and properly brought up would justify the court in making some other disposition of them.’ Ex parte Lincoln, 128 La. 278, 54 So. 818, 819.” State ex rel. Perdue v. Carkuff, 182 La. 920, 162 So. 729. See, also, State ex rel. Burleigh v. Savoie, 185 La. 985, 171 So. 98; Articles 216 and 250 of the Revised Civil Code. (Brackets ours.)

In the majority opinion it is said: “But the evidence in this case leaves a grave doubt as to whether the father is financially or otherwise prepared to take care of his child * * *and the conclusion is “* * * to remand this case to the district court for the introduction of more evidence on the question of the father’s ability of inability to care for his child * * * *»*

> “We have held: A judge has some discretion over the care and custody of children; but it has to be exercised on solid and substantial grounds. * * * *'The discretion to be exercised is not an arbitrary*one, *but in the absence of any positive disqualification of the father for the proper discharge of Ms parental duties, he has, as it seems to us, a paramount right to*
>       *355
>       *the custody of his infant child, which no court is at liberty to disregard.** * * ’ Heitkamp v. Ragan, 142 La. 81, 76 So. 247.

In the early decision of Ozanne v. Delile, 5 Mart., N.S., 21, 22, the court said: “* * * law values in a high degree, and presumes much on the strength of natural affection; and knows that in general it cannot trust to any surer pledge, than that which is furnished by parental attachment. *The evidence therefore should be strong and conclusive that would destroy that presumption;*that would fix a stigma for life on the parent; which would deprive him, if he has the common feelings of our nature, of one of the greatest delights human existence affords, and at the same time cut off his children from enjoying parental affection, and learning how to repay it.” See, also, In re Alexander, 127 La. 853, 54 So. 125; Ex parte Lincoln, 128 La. 278, 54 So. 818.

It is my opinion that the holding in the majority opinion is contrary to and in effect overrules the above enunciated principle, which has been zealously guarded and has never heretofore been deviated from by this court.

In the instant case the majority opinion fails to point out any evidence in the record that would tend to show that relator is disqualified to have the custody of his infant daughter. It therefore follows that th e respondent, relator’s father-in-law, who is resisting the rights of the father of the child in this case, has completely failed in carrying the burden, which is his, to show the disqualification of the relator to have the care and custody of his daughter. Heitkamp v. Ragan, supra. On the contrary, the evidence conclusively shows that the relator, like a large per cent of the people in his immediate and adjoining vicinity, ' earns his livelihood as a tenant farmer, at which occupation he is successful. He comes from good people and is an up-right and- hard-working young man, well able to care for his infant daughter. The evidence further reveals that his father-in-law, respondent here, was without employment at the time this suit was filed and, when employed, earns his living as a waiter in a restaurant in the small town of Arnaudville, which, according to the latest census, has a population of 483.

For the foregoing reasons, and those assigned when this case was originally before us, I respectfully dissent.