Opinion
No. 33718.
January 17, 1957.
DIVORCE — CUSTODY OF CHILDREN — MATTERS CONSIDERED — RIGHTS OF PARENTS. While the welfare of the child is the predominate factor in determining custody, parents have superior rights unless found to be unfit.
SAME — CUSTODY OF CHILDREN — MODIFICATION OF DECREE — GROUNDS — REMARRIAGE AND ESTABLISHMENT OF NEW HOME. The remarriage of a mother and the establishment of a satisfactory and respectable home are sufficient changes in circumstances to warrant the modification of a decree awarding the custody of a minor child to its paternal grandparents.
See 17 Am. Jur. 517.
Appeal from a judgment of the superior court for Adams county, No. 8812, Freese, J., entered March 14, 1956, upon findings, granting a petition to modify a divorce decree in respect to the custody of the minor child of the parties. Affirmed.
Thomas Malott, for appellants.
Del Cary Smith, Charles A. Aten, and Del Cary Smith, Jr., for respondent.
This is a contest between the respondent mother and appellants, the paternal grandparents of Vicky K. Rawe, aged three and one-half years. Respondent's former husband, Raymond A. Rawe, while a defendant, did not join his parents in this appeal. By decree entered below July 8, 1954, a divorce was granted both the respondent and the husband, Raymond A. Rawe, in which it was found that neither the father nor the mother was a fit, suitable, or proper person to have the custody of their little daughter, and consequently, the custody of the child was awarded to the appellants, the father's parents.
At the time of the marriage, respondent was but fifteen years of age and was only sixteen at the time of the divorce. On September 16, 1955, respondent petitioned for modification of the original decree and asked that she then be awarded the custody of her daughter. She alleged that circumstances had materially and substantially changed. The proofs show, and the court found upon substantial evidence, that since the divorce respondent had remarried and that her present husband is an upright man, gainfully employed, and has provided a decent home for her, and that she is now a fit and proper person to have the care, custody, and control of her minor child; and based upon such changes, the court modified the decree by awarding the custody of the child to her.
No question arises as to the fitness of the appellant grandparents, because the court expressly found that they were good and respectable citizens and maintain a respectable and proper home.
[1] While, of course, the welfare of the child is the predominate factor in determining custody, parents have superior rights unless found to be unfit. Cases dealing with awards of custody to grandparents are collected in the footnote. Upon the modification, the trial court expressly found that the respondent was then a fit and proper person to have the care, custody, and control of her minor child.
State ex rel. Michelson v. Superior Court, 41 Wn.2d 718, 251 P.2d 603; In re Ward, 39 Wn.2d 894, 239 P.2d 560; Fleck v. Fleck, 31 Wn.2d 114, 195 P.2d 100; Brookshire v. Brookshire, 29 Wn.2d 783, 189 P.2d 636; Eliason v. Eliason, 10 Wn.2d 719, 118 P.2d 170; In re Kneeland, 160 Wn. 64, 294 P. 562; In re Stuart, 138 Wn. 59, 244 P. 116; Morin v. Morin, 66 Wn. 312, 119 P. 745.
[2] The remarriage of a mother and the establishment of a satisfactory home have been held to be a change of circumstances sufficient to warrant modification ( Allen v. Allen, 38 Wn.2d 128, 228 P.2d 151); and the remarriage of the father and the establishment of a respectable home has been held to be a sufficient change in circumstances to warrant a modification awarding him the custody of a minor child ( Morin v. Morin, 66 Wn. 312, 119 P. 745) previously awarded grandparents.
It cannot be said that the evidence preponderates against the trial court's finding, and the judgment appealed from is, therefore, affirmed.
DONWORTH, MALLERY, and FINLEY, JJ., concur.
SCHWELLENBACH, J., concurs in the result.