In La Chapell v. Mawhinney, 66 Wis.2d 679, 683, 225 N.W.2d 501 (1975), the court held that the rule stated in Ponsford was not inflexible and should not be interpreted as requiring that "in every case involving a dispute between the natural father or mother and grandparents for the custody of the children, the doctrine of the best interests of the children cannot prevail."Summary of this case from In Interest of J.L.W
Submitted under sec. (Rule) 251.54 January 7, 1975 —
Decided February 5, 1975.
APPEAL from an order of the county court for Rock county: MARK FARNUM, Judge. Reversed.
The cause was submitted for the appellants on the brief of Leo H. Hansen, William T. Henderson and Hansen, Eggers, Berres Kelley, S.C., all of Beloit; and for the respondent on the brief of Patrick J. Rude and Murphy, Rude Forrestal, all of Janesville.
This case involves the custody of Cathy Jean Mawhinney, born February 20, 1962, and Karen Kay Mawhinney, born August 6, 1965. The children had been placed in the custody of their mother, Alice Edith Mawhinney, pursuant to a judgment of divorce in 1965. On June 28, 1973, Alice Edith Mawhinney died of natural causes. The maternal grandparents of the children sought custody of them following Alice's death.
On July 6, 1973, the grandparents, Allen Henry and Harriet Esther LaChapell, had the girls' natural father, William Courtney Mawhinney, served with an order to show cause why custody of the girls should not be placed with them. The order to show cause was accompanied by Mr. LaChapell's affidavit in support thereof. In this affidavit, he states that he is the father of Alice Mawhinney, the plaintiff who died of natural causes on June 28, 1973; that Alice was divorced from William on November 3, 1965, and was awarded the care, custody and control of her daughters; that from the time of the divorce Alice had continued custody of the children; that William left the Beloit area prior to the granting of the divorce and has stayed away from the area except for infrequent visits; that on information and belief, William is living with another woman without the sanction of marriage in Breckenridge, Texas; and that William is in arrears in excess of $6,000. He had been ordered to pay $25 per week by the court.
Mr. LaChapell also stated that after his daughter's death, William returned to the Beloit area and attempted to take the children and return to Texas with them. Mr. LaChapell is fifty-one years of age and his wife is fifty-two. They have assisted daily in the personal and financial care of the children since the divorce and are in a position both personally and financially to care for them and ask the court to place the custody with them. Mr. LaChapell states that William is neither dependable nor reliable and, in Mr. LaChapell's opinion, will not provide the care that the children need.
William Mawhinney filed an affidavit in opposition to the order to show cause in which he states that Alice refused to allow him to visit his daughters and, as a result, no support payments were made. He states that he is ready, willing and able to support the children; is gainfully employed; owns his own home; is a church member; and has established a reputation in the area in which he resides as a good and law-abiding citizen. He asks that the petition be dismissed because Mr. LaChapell had no standing in the court and there has been no showing that custody should not be granted to him as the natural parent of the children.
Hearings in this matter were held on October 18, 1973, and January 2, 1974. The record does not show that a guardian ad litem was appointed for the children. The trial court considered the case in the nature of an independent action for custody under sec. 247.05(4), Stats.
The evidence presented will be discussed in considering the issues. In addition to the evidence presented by William Mawhinney and the LaChapells, the court interviewed the two minors individually in chambers and received into evidence a report from Darryl S. Dieckmeier of the Texas department of public welfare. Judge FARNUM made his decision orally from the bench. He found that, prior to the death of Alice Mawhinney, William Mawhinney had abandoned his children, failed to provide for their support, failed to show any interest in them and was illicitly living with a woman whom he has since married. Judge FARNUM stated that had Alice come to court seeking termination of his parental rights, she would probably have gotten it. The judge went on to say, however, that there is the ability to reform and fitness must be determined as of the time of the hearing. The court then found that William Mawhinney is a fit person to have custody of the girls and will continue to be so. It was pointed out that William has an adequate home, a fairly secure income, a family relationship which seems enduring, church affiliations and has apparently led a model life for four years. On the basis of these findings, the court granted custody to William Mawhinney, but, recognizing the interest in the children shown by the maternal grandparents, ordered that the children spend the summer vacations with the grandparents.
An order based on this decision was made on January 31, 1974. The maternal grandparents have appealed from that order.
Two issues are presented on this appeal:
1. In child custody cases involving a dispute between a surviving spouse and the maternal grandparents, is the doctrine of the best interests of the child an element to be considered in awarding custody?
2. Should a guardian ad litem have been appointed for the two children?
Custody — best interests doctrine.
In determining that custody of the two children here should be granted to William Mawhinney, the trial court felt that under Ponsford v. Crute (1972), 56 Wis.2d 407, 202 N.W.2d 5, it had no choice but to award custody to the surviving natural parent unless it could find him to be unfit or unable to care for the children. We do not agree. The conclusion reached by this court in Ponsford should not be interpreted as laying down an inflexible rule, that in every case involving a dispute between the natural father or mother and grandparents for the custody of the children, the doctrine of the best interests of the children cannot prevail. As a general matter, but not invariably, the child's best interest will be served by living in a parent's home. However, if circumstances compel a contrary conclusion, the interests of the child, not a supposed right of even a fit parent to have custody, should control. There well may be cases where it would be detrimental to the best interests of the child to award custody to a surviving spouse.
The trial court in making its decision stated that the fact situation in the present case is "almost exactly the same situation as in the case of Ponsford v. Crute." We think there is a substantial difference in the factual situation of the cases. Ponsford involved the custody of a four-year-old child. In an earlier action, after the mother died, the father sought custody of the child. Custody was denied primarily because the child was two years old and the father was in the military service. The court found under the circumstances the father could not adequately care for the child.
In the later action which was considered on appeal to this court, it was established that the father had remarried, that he was released from military service and had obtained a good job. Under the circumstances in Ponsford there was no question as to where the best interests of the child lay.
In the instant case we are concerned with the custody of children approximately thirteen and ten years old. The children hardly know the father. Between the time of divorce in 1965 and Alice Mawhinney's death in 1973, a period of eight years, the father only visited his children twice. Here the trial court made findings that prior to the death of Alice Mawhinney, the father had abandoned the children, that he had failed to provide necessities for them, that he had failed to display any interest whatsoever in the children and had illicitly lived with a woman he has since married. Here the children have expressed a desire to remain with the grandparents.
Under the facts and circumstances of this case we think the trial court was in error in not considering the best interests of the children in awarding custody. We, therefore, determine that the cause must be remanded and that the trial court should consider anew where the best interests of the children lie.
Guardian ad litem.
No guardian ad litem was appointed for the two children involved in this custody matter. Sec. 247.045, Stats., provides in part:
"Guardian ad litem for minor children. In any action for an annulment, divorce, legal separation, or otherwise affecting marriage, when the court has reason for special concern as to the future welfare of the minor children, the court shall appoint a guardian ad litem to represent such children . . . ."
The instant case is one in which the trial court should have appointed an attorney to serve as guardian ad litem for the children. Under the facts and circumstances established in this case a guardian ad litem would have aided the trial court in fully considering whether the welfare of the children might not be best served by their remaining in the home of the maternal grandparents. In addition, the guardian ad litem can investigate the financial condition of the parties to determine whether they are motivated by the fact that the children receive a total sum of $207 per month social security benefits.
Since there has been no adequate inquiry into what is in the best interests of the children the cause must be remanded for further proceedings. We direct the trial court to appoint a guardian ad litem to represent and speak for the best interests of the children at the new hearing.
By the Court. — Order reversed and cause remanded for further proceedings not inconsistent with this opinion.
While I have no objection to the remand here to consider the placement of custody of the children on the basis of what is in their best interests, I am convinced, on this record, that the plaintiff husband was unfit as a matter of law. Unfitness is more than a matter of "morals." As a matter of fact, the statute dealing with care and custody of minor children describes unfitness in these terms:
"247.24 . . . if the court finds either that the parents are unable to adequately care for any such child or are not fit and proper persons to have the care and custody thereof, . . ."
The evidence here shows conclusively that the father was unfit at the time of the custody hearing. Although the father, at the time of the custody hearing, had made a substantial about-face in his moral conduct, there is little in the record to indicate any substantial concern for the welfare and care of his children. He had seen them very infrequently over the years and was badly delinquent in the payment of support for them. There is no question in my mind but that the trial court's finding of fitness on the part of the father at the time of the hearing is against the clear preponderance and great weight of the evidence.
I have been authorized to state that Mr. Justice BEILFUSS joins in this concurrence.