This is not in fact a lawsuit between the father and mother of their child over its custody. In litigation of that character neither parent is preferred over the other, but as has been said in many cases, the welfare of the child in those cases is the chief and controlling consideration. On the contrary, as will presently very conclusively appear, the litigation is between Mrs. Carpenter, the father's mother, and the mother of the child, and in litigation of that character there is a preference in law. The parent who wishes to keep the custody of his or her child has the right to do so, unless for good reasons, and for the child's protection and benefit it should be given to a grandparent or to some other person.
Here the parents of the child were married May 13, 1938. At that time the father was a soldier in the regular army, and after his marriage, he was sent overseas. *Page 619 Upon his return and discharge, he re-enlisted after the conclusion of hostilities and is in that service now.
On January 24, 1944, he obtained a divorce from his wife on the ground of no cohabitation for a period of more than three years. The divorce was obtained upon publication of a warning order, and Mrs. Hunter testified that she was unaware of the pendency of the suit until after the divorce decree had been rendered, and her husband had remarried. This was his third marriage. She testified that her husband knew her address, but that she received no notice of the suit, and that she only learned of the divorce through the War Department.
According to the undisputed evidence, Mr. Hunter, the father, has never at any time had the care and responsibility of the child for a single moment, and he does not claim ever to have spent one dime of his own money in its support as the government allotments for the child were supplementary to his base pay. He now has a wife and presumably a home; but he did not ask for the custody of the child when he obtained his divorce, and he does not now ask that he be allowed to take the child into his own home.
Mr. Hunter, the husband, was stationed at Marfa, Texas, and his wife lived there with him for a short time before he was transferred to Ft. Sill, Oklahoma. He testified that he told his wife that he was going to be transferred, and that he directed her to go to his mother's home, but she said she would go to her own home, although before doing so she made a visit of some six weeks to two months at her mother-in-law's home. She testified that when she left her husband did not give her the money to pay her bus fare.
After leaving Marfa, Mr. Hunter wrote a letter dated February 22, 1941, in which he stated he was expecting to be transferred to Ft. Sill at any time, and that he would send for her after his transfer, when he had found a home, but he never sent for her. On the contrary, Mrs. Hunter testified that although she wrote Mr. Hunter *Page 620 a number of times to send for her, advising him that she was ready to go when he said come, she never received that invitation. He did write several letters indicating an intention to send for her, but he never did fix a time for her to come.
When Mrs. Hunter left Marfa she was unable to take her baby bed with her, and in the letter above referred to, Mr. Hunter wrote appellant that he had not been able to sell the baby bed, but that he expected to do so. Evidently he did not contemplate that he would have any further use for it.
Mrs. Hunter lived for a few months in the home of her father, but conditions were not congenial there. She had inherited some property from her mother, which, as required by her mother's will, was turned over to her by her father. This property was not well invested and much of it was lost. Mrs. Hunter took her child and placed it in the hands of a Mrs. Burkhart. She and Mrs. Carpenter, her mother-in-law, visited the child at Mrs. Burkhart's home, and both concluded that this was not a suitable place for the child, and she took it from Mrs. Burkhart's home and placed it in the home of a Mrs. West. Mrs. Carpenter testified that this was not a suitable place for the child, although she had never been in it. She testified that she went there but was refused admission by Mrs. West. Further reference will be made to this home and its character.
There is no question but that Mrs. Hunter developed a serious nervous condition, of which she was fully aware, and she went to a Sanitorium for treatment. While there she wrote the letter copied in the majority opinion, which appears to have largely controlled the decision of this case. This letter was written in a good firm hand, as appears from the photostatic copy thereof appearing in the record. It was well composed, properly punctuated, and does not contain a single misspelled word, although it is three pages in length. In referring to her illness she used in this letter the word "epilepsy," which is correctly spelled, rather than the word "psychosis," which *Page 621 she may not have been able to spell. But neither word would have conveyed any meaning to the child except to advise him that the writer, his mother, was not then in physical condition to have him with her. The word "psychosis" appears frequently in this record, and was employed by all the doctors who testified in the case, and no one of them used the word "epilepsy," or indicated that she had that affliction, but all employed the word "psychosis" in one connection or the other.
The testimony of Mrs. Hunter's father appears to have been given great weight by the majority, and so it should have been, if it were only true. With apparent candor, but I think only to give it greater weight, he testified that he regretted to say that he did not think his daughter should have the custody of the child. It is suggested that Mrs. Hunter labored under hallucinations, one of these being that her father was not friendly to her. I think the testimony shows that was no hallucination, but is a fact. Mrs. Hunter did not denounce her father, or speak unkindly of him, but the testimony develops certain facts which dissolve the hallucination theory. Mrs. Hunter's mother left her some or all of her estate. The record does not show what part or the value thereof. But whatever its value may have been, the father surrendered it to her as he was required to do under the will of his wife. Later, and after Mrs. Hunter left the Sanitorium where she wrote the letter to her son, above referred to, she inherited property from which she derives an income of $300 per month. This inheritance came from a relative of her mother. She did not permit her father to have control of this property.
Her father testified that his daughter appeared to be normal until about 1945, when she contracted scarlet fever, and was given a treatment which affected her physically almost immediately, and that she had never been the same since, and at her own request he took her to the Sanitorium. While she was there the doctor in charge wrote him that his daughter "was not a mental case but an extreme case of nerves." After leaving the *Page 622 Sanitorium Mrs. Hunter took her child and placed him with Mrs. West. Mrs. Hunter's father and Mr. Hunter went to Mrs. West's home to see the child, without advising Mrs. Hunter that they were going to do so. He stated that it was only about 7:20 in the evening, when he went there. Mrs. West placed the time much later. At any rate the child had retired and was asleep. Mrs. West denied him admission for the reason stated by her that she had been in one kidnapping case. Mrs. West had served as a missionary to China for some years.
Mrs. Hunter's father admitted that after Mr. Hunter was again inducted into the army the child lived with its mother except for short intervals, and the time and number of these intervals will be detailed. He tried to discredit Mrs. West's home by saying that soldiers went there, but he admitted that all he knew was mere rumor, and it was shown that the soldiers who did go there were the husbands of two women who were boarding with Mrs. West. He stated that the child was fortunate to have a grandmother who would give him a home, although he knew that his daughter was making every effort to get this child into a home which she owned.
Mrs. Hunter's mother died in 1933, and her father remarried in 1937. He stated that when Mrs. Hunter married it was published in the newspaper that he had announced the marriage, when he had not done so. Mrs. Hunter admitted that her father had not authorized the announcement, but she thought this the best way to make the announcement. He stated that Mrs. Hunter took pride in the fact that no one knew how much money she had, which she had inherited from her uncle, and stated that "So far as I am concerned she can handle her own affairs." He was asked: "You don't care much about what your daughter does do you?", and he answered, "No, I don't. She does not want anyone to know anything about her business, and the best I can do is to respect her wishes."
Other testimony of the father shows, I think, the deepest animosity and not a mere hallucination. *Page 623
But the crowning piece of animosity, not to say mendacity, was the production of the letter from Mrs. Hunter to her son, written at a time when she was distracted over her financial inability to provide her son as she wished to do, the lack of sympathy of her father, and her then debilitated physical condition. Her father went voluntarily to El Dorado, where his depositions were taken." Counsel for appellees say, "He was caught up by appellees and his deposition taken."
The present wife of Mrs. Hunter's father gave the hearsay testimony that Dr. Pearson and another doctor had told her that it was not advisable for Mrs. Hunter to keep the child with her and Mrs. Drummond, a daughter of Mrs. Carpenter, testified that Mrs. Hunter used a stick of wood in correcting the child.
I should not dissent in this case if the testimony showed the state of Mrs. Hunter's health to have been unchanged since the date of her letter to her son. But it shows a change.
Two doctors testified as medical experts on behalf of appellees. One of these, a Dr. Hill, testified that he could not say whether Mrs. Hunter is now a competent and fit person to have the custody and responsibility of rearing her child, as he had not seen her since February, 1945. He did say that if her condition is the same now as it was then, she would not be a fit person to have the custody of the child. He testified that when he examined Mrs. Hunter in February, 1945, she had a psychosis type undetermined, but of a depressed nature and that it was on his advice that Mrs. Hunter was sent to the Sanitorium.
Testimony somewhat stronger was given by Dr. Pearson, a physician employed in a mental institution in Tennessee. He testified that he examined Mrs. Hunter on February 12, 1945, and had seen her twice since, and he thought her mentally unfit to rear a child, and that he saw no reason why her mental condition could be improved. *Page 624
Opposed to this testimony was that of three other physicians. One of these, Dr. Fincher of El Dorado, who had done post-graduate work in a number of leading colleges and schools, testified that he had just completed an examination of Mrs. Hunter, and except for being a bit anemic, he found her in good physical condition, with no evidence of any organic disease. When shown the answer of Dr. Pearson taken on interrogatories, that Mrs. Hunter was suffering from a definite psychosis and was not then mentally fit to properly raise a child, he was asked what he would say of Mrs. Hunter's present condition, and he answered: "I am satisfied that she is fully recovered at this time and does not have any psychosis now." A Dr. Horton residing in Chattanooga, Tennessee, near which city Mrs. Hunter now resides, testified that he was a graduate of Yale Medical School and the University of Edinborough, and that he had actively engaged in the practice of his profession for thirty-five years. He testified that he had known Mrs. Hunter for six or eight months and that during that time examined her on different occasions at intervals of two or three weeks, and that at no time did he find any evidence of her being mentally incompetent or of unsound mind. That she seemed to be in good health physically and mentally, and that he found nothing to give her treatment for, and that his last examination was the same as the first, and that basing his opinion on his acquaintance with her and his examination of her, he was convinced that she was competent and a fit person to have and discharge a mother's responsibilities in rearing a child. He further testified that Mrs. Hunter appeared to be very intelligent, and he saw no evidence of nervousness whatever, and that he found her to be a fine, high type woman.
Dr. Wharton of El Dorado gave testimony equally as convincing. He had examined Mrs. Hunter for forty-five or fifty minutes the day before he testified. He stated that her memory was adequate and that there was then no evidence of psychosis and nothing to suggest neurosis. That Mrs. Hunter reads well, has had eleven *Page 625 years of public school work, and two years of vocational school; that she has transacted her business satisfactorily, and gave no impression of illness, and that he found no evidence whatever of true psychosis, and that she remembered too much about her condition to be insane or to have been insane at any time. That if she had psychosis in 1945, due to her nervous condition, the trouble had entirely cleared up, and that while that condition might return, it might as likely occur in anyone else who had never had it. This is the woman who largely through the testimony of her father, has had her child taken away from her yet she indulged in no criticism of her father except to say that he wanted control of her property.
Sufficient to provoke a frenzy on the part of Mrs. Hunter, were questions of the most brutal nature, one of these being, if she had attempted to have sexual intercourse with her son when he was five years old, and while she answered the question with the scorn it deserved, she preserved her equilibrium.
Three ladies, friends and neighbors of Mrs. Hunter, accompanied her to the trial to give evidence in her behalf. A Mrs. Williams who is the secretary to one of the leading law firms of Chattanooga, testified that she had known Mrs. Hunter for twenty-two years and had lived within a few doors of her for several years. She recalled Mrs. Hunter's illness, but stated that the trouble had cleared up, that Mrs. Hunter was a christian lady and that her reputation was good, and that she attended church and Sunday school, and carried her son with her.
Another witness, named Mrs. Williams, but not related to the other, testified that she had lived across the street from Mrs. Hunter in the town of Rossville, Georgia, near the city of Chattanooga, and that she saw Mrs. Hunter nearly every day. That Mrs. Hunter was deeply interested in her child, and made him mind as well as any child does. That Mrs. Hunter played the organ at a mission church which they both attended, and that her reputation was not only good, but was very good. She *Page 626 recalled Mrs. Hunter's illness and her stay in the Sanitorium, and stated that after conferring with an outstanding judge in Chattanooga, she advised placing the child with Mrs. West. At Mrs. Carpenter's suggestion she had told Mrs. Hunter that Mrs. Burkhart's home was not a good place for the child, and Mrs. Hunter removed him. She further testified that Mrs. Hunter had been a mental case, "But she is all right now. I am with her every day and if there is anything wrong with her I have not seen it."
Another neighbor had known Mrs. Hunter for nine years but did not see her during the period of her illness, but had seen her frequently during the past six months and stated, "I certainly think she is physically and mentally capable of rearing her own child."
The opinion of the Chancellor delivered in this case reflects that the decree was based upon what I think was a misapprehension of the testimony, and the majority have fallen into the same error. In this opinion it is stated, first, that this was a suit between the father and the mother of the child. Second, that the mother was suffering from psychosis. Third, that if the child was returned to the mother "the primary condition might return." And finally, "The child has not had a permanent home and did not have one until October, 1945, was just shifted about." And upon these findings it was adjudged that it was best for mother and child to leave the custody of the child undisturbed.
When the testimony has been correctly analyzed, I think the findings stated are contrary to the preponderance of the evidence.
First, this is in fact a suit between the mother and the grandmother, originating when the mother brought habeas corpus to recover possession of her child. It is true that after the suit was filed the father was made a party, upon a motion of his mother, and with more loyalty to his mother than Mrs. Hunter's father has shown to her, he joined in the defense of the suit. But in this connection there are certain facts which should not be *Page 627 ignored or left out of account. The father married after being divorced, and had made no attempt to take the child into his home, and he does not now ask its custody for himself, but only for his mother. After re-enlisting in the army he prepared a statement to the effect that the custody of the child had been voluntarily given him by its mother, and that his own mother now had the permanent custody of the child, and he directed that allotments be made his mother on that account, these amounted to $30 per month for the support of the child, and $37 per month for its care. So that Mrs. Carpenter will receive not from the father, but from the government, the sum of $67 per month, so long as she retains the custody of the child. She is now living in a cottage with three rooms, and a bath, paying $10 per month rent, with another grown son and the child. The affirmance of this decree will not give the custody of the child to the father. He does not even ask it.
Many cases have announced the law applicable to this situation. A quite recent one being the case of Hazelip v. Taylor, 209 Ark. 510, 190 S.W.2d 982, which was a contest over the custody of a child between the father and the child's foster parents. In reversing the judgment which had awarded the custody of the child to the foster parents we there said: "So, in the instant case, Taylor will not be deprived of his legal and natural rights unless it be convincingly shown (a) that as a father he has forfeited his claim or that circumstances make it impossible for him to fulfill the parental obligation, and (b) that the child's welfare requires alienation."
There is no real testimony that Mrs. Hunter ever abandoned the child, the only testimony to that effect being that of Mr. Hunter that Mrs. Hunter had voluntarily given him the permanent custody of the child. This testimony is contradicted by Mrs. Carpenter whose testimony was that Mrs. Hunter agreed that Mr. Hunter might have the child a part of the time and that testimony corroborates the testimony of Mrs. Hunter on that question. She stated she thought a temporary change might be beneficial both to her and to her son. If the *Page 628 removal of the child from the state of Georgia to this state was not intended by the mother to be a transfer of custody but was only a temporary arrangement, the child continued in the constructive custody of its mother.
In a controversy of this character the law shows no preference to one parent over another, but considers primarily the welfare of the child. But this is not the rule in a controversy between a parent and one otherwise claiming the custody of the child. In holding that the right of the parent is preferred, it is said in the case of Lipsey v. Battle, 80 Ark. 287, 97 S.W. 49, that: "This right is founded on the fact that the natural love and affection of a mother for such a child would probably be greater than that of anyone else, and that the best interest of the child will generally be subserved by allowing it to remain in her custody."
Now the finding that Mrs. Hunter was suffering from psychosis might be true if it had read that she had suffered from that ailment, although it appears from what has been said, this may not be true. That Mrs. Hunter was severely ill at the time she wrote the ill fated letter to her child is not denied, although there is a doubt as to the nature of her ailment. No one of the doctors stated that she was thus afflicted at the time of the trial, and three doctors expressed a definite opinion to the contrary. There is at least some doubt on the subject, and that doubt should have been resolved in Mrs. Hunter's favor and not against her. This is true for two reasons, the first being that she was the natural custodian of the child, her husband not asserting that right in himself.
But there is a second reason equally as potent. It is this. Decrees awarding custody of children are final unless and until it be shown that a change has occurred in conditions which induced the award of custody. If Mrs. Hunter's illness, whatever it may have been, should return, although it was the opinion of three doctors that this was improbable, it would then be in the power of the court to change the custody of the child and place it in *Page 629 the care of someone who would give it the attention and protection which its infancy required. On the other hand, if this decree is not reversed, Mrs. Hunter has permanently lost the custody of her child and her heroic efforts to regain her health and recover custody of the child will be at an end, for the reason that in any future suit she would be confronted with the fact that she was once psychopathic, and that that condition might return.
But the law is that a part illness, no matter how severe, or long continued, will not, after complete recovery, deny a mother the right to have her child with her. Loewe v. Shook, 171 Ark. 475, 284 S.W. 726; Herbert v. Herbert,176 Ark. 858, 4 S.W.2d 513; Holmes v. Coleman, 195 Ark. 196,111 S.W.2d 474.
In the case last cited the facts were that the mother was suffering from nephritis when her child was born and it was decided that the mother should be placed in a hospital for treatment, and that the care of the baby should be intrusted to a neighbor, who after keeping the baby for three years asked to be allowed to adopt it, which request was denied. The mother was so appreciative of the service rendered to the child, that she refrained from taking it into her custody, although she had asked for its return, until the child was seven years old, when she brought habeas corpus as Mrs. Hunter had done. It was there held, to quote a headnote: "Where the mother, sick at the time the child was born, was unable to care for it, and appellants graciously took it and cared for it while the mother was in the hospital; where there was no abandonment of the child nor a gift of it; and there was no question about the parents being proper parties to care for the child, an award of the child to its natural parents was proper."
No doctor who had recently examined Mrs. Hunter testified that the child would, if returned to its mother, again get on her nerves, and the great preponderance of the lay testimony is to the contrary. The unnatural father gave this as an explanation of his attitude, but on his cross-examination he was forced to admit that in the *Page 630 past five years he had seen mother and son together only five or six times, and had to admit that his testimony on lack of control of the child was based on hearsay and finally added, "I don't know anything."
Nor is the finding that the child had no home until given one by Mrs. Carpenter supported by the preponderance of the evidence. The undisputed evidence is to the effect that he had been continuously with his mother except on five occasions. First, the six weeks or two months visit to the grandmother in 1942. Second, the stay with the maternal grandfather in 1945, when the mother was in the sanitorium. Third, the six weeks visit to the paternal grandmother in the summer of 1945. Fourth, the few weeks spent in the home of Mrs. Burkhart, and fifth, the short time spent in the home of Mrs. West. And the testimony shows that while the child was with Mrs. Burkhart and Mrs. West it was constantly visited by its mother, and it was also undisputed that at the end of each of these periods the mother reclaimed her child.
It may be said that the child should not have been placed with Mrs. Burkhart or Mrs. West, but in view of Mrs. Hunter's then financial condition, her distractions and her illness, it was the best she could do under the circumstances. However, since then both her physical and financial conditions have improved, and she now proposes to take the child to one of the two homes which she now owns, which is within three blocks of the school the child may attend.
Mrs. Hunter does not ask for the child because of the $67 per month allotment which the government pays Mrs. Carpenter, but because it was born to her and the hope of having it at last as her very own has been the inspiration leading to the recovery of her health, and her own health should be taken into account. If the child is taken from her she may again have psychosis, as the loss of a child under the circumstances here stated might cause psychosis in a mother who had never been so afflicted. *Page 631
I think the decree should be reversed and the child restored to the custody of its mother for the reason stated in the summation of the case in the brief of her counsel as follows:
"Instead of shifting the little fellow about, this mother, through trial and disappointment, with no personal, and little financial, help on the part of the father was doing her very best to maintain a home for him. For some five years without hope of reward, but following blindly the mother instinct, she clothed and fed him, provided a roof over his head, nursed him and trained him. The father admits that he left the care of this child to her. His interest in the matter must have been very slight for he admits that during this time he didn't `know how she got along taking care of the child.' And the grandmother didn't know where mother or child was. Neither the father nor grandmother was greatly interested then, but fortunately the mother was. She was providing a home for the boy, and giving him her personal care and attention. But for her effort doubtless there would have been no little boy for the father and grandmother to claim now."
I am authorized to say that Justices HOLT and MILLWEE are of the opinion that the custody of this child should be awarded to its mother.