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Jarrett v. Jarrett, 348 Ill. = App. 1, 107=20 N.E.2d 622 (Ill.App. 06/10/1952)

[1]	ILLINOIS APPELLATE COURT
[2]	Gen. No. 9,832.
[3]	348 Ill. App. 1, 107 N.E.2d 622, 1952.IL.0000347=20 = <http://www.versuslaw.com>
[4]	OPINION FILED JUNE 10, 1952 =
[5]	NELLROSE JARRETT, PLAINTIFF, v. ROBERT JARRETT, = DEFENDANT. ROBERT NELSON JARRETT,=20 PETITIONER-APPELLANT, v. ERNEST BOGGESS AND ADA = BOGGESS,=20 = INTERVENING-PETITIONERS-APPELLEES.
[6]	Appeal by petitioner from the Circuit Court of Greene county; = the Hon.=20 CLEM SMITH, Judge, presiding. Heard in this court at the May term, = 1952.=20 Reversed and remanded with directions. Opinion filed June 10, = 1952.=20 Rehearing denied September 10, 1952. Released for publication = September=20 10, 1952.
[7]	JOHN B. HARRIS, of Granite City, for appellant. L.A. = MEHRHOFF,=20 of Carrollton, and WISEMAN & CHAPMAN, of Alton, for appellees. =
[8]	MR. JUSTICE REYNOLDS DELIVERED THE OPINION OF THE = COURT.
[9]	Rehearing denied September 10, 1952
[10]	The petitioner, Robert Nelson Jarrett, married Nellrose Jarrett = at=20 Alton, Illinois on August 13th, 1946. They did not live together = after=20 their marriage. Jarrett took his wife to her grandmother, Nellie = Spencer,=20 who lived with her husband, W.A. Spencer, on a farm near = Roodhouse,=20 Illinois. He then returned to his home at Granite City. Nellrose = Jarrett=20 had conceived prior to the marriage and on November 18, 1946, gave = birth=20 to the child David Nelson Jarrett. In April 1949, Mrs. Jarrett = filed for=20 divorce charging desertion and asking for the custody of the = child. The=20 defendant to that case, the petitioner herein, entered his = appearance to=20 that divorce suit and on May 26, 1949, a divorce was granted on = the ground=20 of desertion without reasonable cause and the custody of the = child, David=20 Nelson Jarrett, was awarded to the mother, and the father, Robert = Nelson=20 Jarrett, was ordered to pay $20 per month for the support of the = child.=20 The father was given the right of visitation at least one Sunday = afternoon=20 of each month, from 1:00 p.m. to 6:00 p.m.
[11]	Both the father and mother remarried, each taking a new spouse. = On May=20 21, 1951, the mother, Nellrose Jarrett, died leaving surviving her = the=20 child David Nelson Jarrett. What happened to the husband of = Nellrose=20 Jarrett by the second marriage does not appear of record but since = he=20 makes no claim it is not important. The child lived from the time = of his=20 birth until the present time with his mother, and his grandmother, = Mrs.=20 Ada Boggess, and her husband, Ernest Boggess, except for a short = time when=20 he lived with his great grandmother. The mother, Nellrose Jarrett, = until=20 about August 1950, when she remarried, lived with her mother, Mrs. = Boggess. After the remarriage in August 1950, the child lived with = Mrs.=20 Boggess.
[12]	In July 1951, after the mother's death, the father, Robert = Nelson=20 Jarrett, filed his petition to amend the decree by awarding the = custody of=20 the child to him. This was resisted by the grandmother, Ada = Boggess, and=20 her husband, Ernest Boggess, who filed an intervening petition for = the=20 custody of the child. The child was then about four and one-half = years of=20 age. The intervening petitioners claimed they had had more of the = care,=20 custody and control of the child than its own mother; that they = were both=20 attached to the child and the child to them; that they were = persons of=20 modest means but able to care for and rear the child; that the = father was=20 not a fit and proper person to have the care, custody and control = of the=20 child in preference to them. They then asked for a modification of = the=20 original decree, by awarding the child to them.
[13]	The chancellor heard the matter and on August 3rd, 1951, allowed = the=20 prayer of the intervening petition and gave the care, custody and = control=20 of the child, David Nelson Jarrett, to the grandmother and her = husband.=20 Mr. Boggess was not the maternal grandfather. By such order the = chancellor=20 denies the petition of the father. From that order the petitioner, = the=20 father, Robert Nelson Jarrett, has appealed to this = court.
[14]	The appellant assigns six errors as grounds for reversal. For = the=20 purpose of this case, they may well be condensed into these=20 points:
[15]	1. Is the father a fit and proper person to have the custody of = the=20 child?
[16]	2. Has the father forfeited any of his rights to said=20 child?
[17]	3. Taking into consideration the two questions above, what is = for the=20 best interests of the child?
[18]	This kind of a case presents matters that are often difficult to = decide. As our courts have said before, any decision is apt to = bring=20 heartache to those who deserve it least. When people through the = goodness of their hearts, take a child into their home = and lavish=20 upon it their affection and care, they are certainly entitled to = much=20 consideration. Yet, in determining the rights of the parties = concerned,=20 the court must take the law as laid down in numerous cases in both = the=20 Supreme Court and the Appellate Courts and apply that law to the = facts in=20 this case.
[19]	The first question to be decided is whether or not the father is = a fit=20 person to have the custody and control of the child. While the = intervening=20 petitioners alleged that the father was not such a proper person, = there is=20 no evidence in the record to substantiate this, but, on the = contrary there=20 is evidence to the effect that he is a proper and fit person. It = is=20 probably true that the father refused to live with the mother and = did=20 remark that he would not take the child. The reason for the = ill-feeling=20 between the mother and father is not disclosed and is not too = important at=20 this time, but there seems to be no question that such ill-feeling = existed. The father could and did change his mind about wanting = the=20 custody of the child. This court feels that the evidence = establishes that=20 the father is a fit and proper person to have the custody of the = child and=20 that the intervening petitioners failed to produce any evidence = that he=20 was not such a proper and fit person.
[20]	If the father is a proper and fit person to have the custody of = the=20 child, he could, by neglect, abuse, or otherwise, forfeit his = rights to=20 the custody of the child. As to that, the evidence is that he = refused to=20 take the child at one time; that he visited the child about four = times=20 during the child's lifetime, or within four years; that he paid, = by order=20 of the court, $20 per month for the support of the child, after = the=20 divorce, with the exception of about two months when he stated he = was not=20 able to do so; that prior to the divorce he gave the mother money = for the=20 support of the child. A court is only warranted in=20 depriving a father of the custody of his child where the evidence=20 discloses that the child is destitute, abandoned or dependent; = that the=20 father is living an immoral life or in vicious or disreputable=20 circumstances; that he has neglected or treated the child cruelly = or=20 unkindly or that he may so treat the child; that he is wanting in = good=20 principles or that he is illy adapted to the care of the child on = account=20 of defects in his mental or physical qualities which prevent him = from=20 being a kind and affectionate father. Wohlford v. Burckhardt, 141 = Ill.=20 App. 321. None of these conditions appear in this = case.
[21]	The right of the father to custody is paramount, unless one or = more of=20 the following conditions is present: (a) The father is unfit or = (b) by his=20 conduct he has forfeited his right to custody. The Statutes of = Illinois=20 set forth the paramount right of the father to custody of the = child, where=20 he is a fit person and has not forfeited his rights, by the = following=20 language: "When both parents of a minor are living and are = competent to=20 transact their own business and are fit persons, they are entitled = to the=20 custody of the person of the minor and the direction of his = education;=20 and, if one parent is dead and the surviving parent is competent = to=20 transact his own business and is a fit person, he is similarly = entitled."=20 Chapter 3, section 284, Illinois Revised Statutes (1951). [Jones = Ill.=20 Stats. Ann. 110.381.]
[22]	The law presumes the interest and welfare of the child to be = best=20 served in the custody of its father (Wilson v. Mitchell, 48 Colo. = 454) and=20 that the right of a parent to the custody of his child is superior = to that=20 of any other person when he is fit and can provide the necessities = of=20 life, and where both contestants are equally proper persons, such = as in=20 this case, the father will be awarded the preference. Cormack v. = Marshall, 211 Ill. 519. People ex rel. Yarmulnick v. = Hoff,=20 323 Ill. App. 535.
[23]	In the case of Kulan v. Anderson, 300 Ill. App. 267, a well = reasoned=20 opinion in this class of cases, after reviewing the holdings of = this and=20 other states pertaining to the custody of children, the court said = at page=20 277: "It must be borne in mind that the controversy in the instant = case is=20 between the father and an aunt, and that the right of the State to = take a=20 child from the parent, or parents, . . . is not here involved. In = our=20 opinion, the father, under the law of this State and the admitted = facts,=20 had the right to the sole custody of the child . . . The rule that = a=20 parent has the right to the custody of his child against all the = world,=20 unless he has forfeited that right, was born of the natural desire = of=20 mankind to create and maintain a home; and, as has been often = said, the=20 home is the foundation of society and civilization. Deprive worthy = parents=20 of their natural right to the custody of their children, where = they have=20 not forfeited that right, and you undermine the home." People ex = rel.=20 Yarmulnick v. Hoff, 323 Ill. App. 535.
[24]	In Cormack v. Marshall, 211 Ill. 519, at page 523, the court = there=20 said:
[25]	"We regard the rights of the parent as superior to those of any = other=20 person when that parent is a fit person to have the custody of = children=20 and is so circumstanced that he can provide the necessaries of = life and=20 administer to the requirements of such a = charge."
[26]	The same language is used in Sullivan v. People ex rel. Heeney, = 224=20 Ill. 468, and the court there, going further = said:
[27]	". . . and the legal presumption, in the absence of all proof, = is that=20 he is entitled to its care and custody."
[28]	The third question is that of what is for the best interest of = the=20 child. The evidence discloses that the grandmother = and the=20 husband are elderly people. The child is only four years of age.=20 Apparently, both the grandmother and her husband, and the father = and his=20 wife, are equally financially capable of supporting the child and = giving=20 to him a proper home surrounding. The father and his second wife = declare=20 they are ready and willing to take the child, love him and rear = him as=20 they should. Under the circumstances, we are not prepared to say = that the=20 right of the father to the custody of his child should be = overridden. As=20 the surviving parent and the father, he has certain paramount = rights which=20 are good against all the world unless he is not a fit person or = has=20 forfeited those rights. Evidently the child will be well cared for = in=20 either home, that of his grandmother or that of his father, so = that the=20 best interest of the child will be served if the custody is = granted to the=20 father.
[29]	This court must therefore find that the father is a fit and = proper=20 person to have the custody of his child; that he has not forfeited = any of=20 his rights to custody, and that the best interests of the child = will be=20 served by awarding his custody to his father. There is no evidence = in the=20 record to the contrary.
[30]	The decision of the circuit court is reversed and the cause = remanded=20 with directions to modify the original decree and grant the = custody of the=20 child, David Nelson Jarrett, to his father, Robert Nelson=20 Jarrett.
[31]	Reversed and remanded with directions.=20

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