In re Application of M. E. Melroy for a Writ of Habeas Corpus for Gean Gordon Melroy, a Minor, Petitioner, Appellee, v. Sophia B. Keiser, Respondent, Appellant; Hugh E. Melroy, Interpleader, Appellee

Kansas Supreme Court1927-05-07No. No. 27,352

123 Kan. 513

Summary · law.co

Holding. The judgment of the trial court was affirmed. A biological parent who has not legally surrendered his custodial rights is entitled to custody of his child, and a guardianship appointment made in probate court without the parent's consent and without addressing his fitness is not binding on that parent.

A habeas corpus proceeding arose over custody of a minor child whose mother died in 1922. The child's father initially placed him with the paternal grandmother but later joined the Navy. During the father's service, the maternal grandmother sought and obtained guardianship through probate court. The paternal grandmother then filed for habeas corpus. When the father was brought into the case after his naval discharge, he sought custody, stating he had remarried, maintained a home, and was employed as a linotype operator. The trial court awarded custody to the father after finding he had never legally surrendered his parental rights and was a suitable custodian.

The appellate court affirmed the lower court's decision, holding that a parent who has not legally surrendered custody rights retains the fundamental entitlement to care for his own child. The court further determined that the guardianship appointment made by the probate court without the father's consent and without any hearing on his fitness to parent was not binding on him.

Summary generated by law.co from the public-domain opinion. The opinion text itself is public domain.

Key issues

Whether a parent who has not legally surrendered parental rights retains the right to custody
Whether a guardianship appointment made without the parent's consent is binding
Whether the trial court's factual findings regarding the father's fitness to parent are supported by evidence

Procedural posture

The case originated in probate court when the maternal grandmother sought guardianship, was appealed to district court after the paternal grandmother filed for habeas corpus, and is now on appeal after the district court awarded custody to the biological father.

Authorities cited

No cited authorities resolved to law.co cases yet.

Opinion · public domain

majority opinion

The opinion of the court was delivered by

Harvey, J.:

This is a habeas corpus proceeding for the custody of a minor child. The court below, after a full hearing, made exhaustive findings of fact, also conclusions of law, and rendered judgment in favor of the father, who was an intervener in the case.

The material facts are substantially as follows; The child, Gean Gordon Melroy, was born November 10, 1920. His mother was killed in an automobile casualty May 21, 1922. Soon thereafter his father, Hugh E. Melroy, took the child to the home of his mother, Mrs. M. E. Melroy. About that time he had a talk with the respondent, who is the child’s maternal grandmother, in which he expressed the faith that respondent could make a home for the child and the doubt whether his mother, Mrs. M. E. Melroy, was situated to take proper care of the child. Notwithstanding these expressions he placed the child with his mother, so far as he was able to do so by actual delivery and by written instrument, the nature of which written instrument is not disclosed. Hugh E. Melroy then joined the navy,- where he remained for a three-year term and until honorably discharged in April, 1925. Soon after Hugh E. Melroy went to the navy the two grandparental families began a contest for the child. Finally some kind of an agreement was had between them by which each family in turn had charge of the minor for a few weeks at a time. At one time when the respondent had the child she went into probate court and, on her application, was appointed guardian of the person and estate of the child. The paternal grandmother, Mrs. M. E. Melroy, then brought this proceeding for a writ of habeas corpus in the probate court. It was appealed to the district court. There an application was made that the child’s father, Hugh E. Melroy, be made a party to the action and required to plead to the response of the respondent. This order was made in November, 1925. The father appeared and answered the response. The answer disclosed that he had completed his service in the navy; that he was married again; that he is a linotype operator capable of earning $35 a week, and was employed; that he and his present wife were maintaining a home, and desired the custody of the child. At the close of the hearing the court awarded the custody of the child to his father, Hugh E. Melroy. The respondent has appealed from that decision.

The legal questions involved are not many nor difficult. The child’s father, never having legally surrendered his right to the custody of the child, by consenting to its adoption or otherwise, is entitled to the custody of his own child. This is so well settled in the law that no authorities are needed to support it. An effort was made to show that the father was not a suitable person to rear the child, but the trial court found against respondent on that issue, and upon all other controverted questions of fact. These findings are supported by the evidence and they are binding on this court.

The order of the probate court appointing respondent guardian of the person of the child, without the consent of the child’s father, and where no issue concerning the father’s fitness was presented or determined in the proceedings in which such appointment was made, is not binding on the father. (In re Brown, 98 Kan. 663,159 Pac. 405.)

The judgment of the court below is affirmed.