Natural Parents

Natural Parents

___Animosity Between
   A mother’s covert departure with her child from the marital home without telling the father where his daughter could be reached, and her failure to inform the father of her new address and phone number when she and her child moved out of her parents’ house, encourage a close and continuing relationship between the father and the child; this information was necessarily factored into the custody resolution.  In re Quindry

___Claim of Third Party
   Where testimony indicated that the child frequently arrived at the baby sitter in the morning wearing the same diaper she had on when she left the baby sister the night before, the baby’s formula was almost always spoiled, and prescription medication intended for the baby was not used to control the infant’s asthma, the circuit court was correct in concluding it was in the baby’s best interests for the third-party respondent to have custody rather than the natural parent.  In re Sechrest
   Ordinarily the right of a natural parent will prevail over the claim of a third party where both parties are equally fit.  In re Krause

___Presumption
   The law presumes that it is in the best interest of a child to be raised by the natural parent.  In re Krause
   The court could not deny the natural mother her right to have custody of her child, on a record which did not support the trial court’s finding of parental unfitness and dependency.  In re Bartha
   Parents are entitled to custody of their child unless they are unfit or if the welfare of the child would be best served by denying the parents custody of their child.  McAdams v. McAdams

___Superior Right
   A third party seeking to obtain or retain custody of a child over the natural parent must demonstrate good cause to overcome the presumption that a parent has a superior right to custody and further must show that it is in the child’s best interest that the third party be awarded the care, custody, and control of the minor.  In re Rudsell
   The superior right doctrine, or presumption in favor of the natural parent, need not always be applied automatically in conjunction with the best interests of the child standard; in a dissolution of marriage proceeding, the superior right doctrine will not be applied where both the natural parents are seeking custody of their children, as each starts out on equal footing, with the court ultimately determining custody in accordance, with the best interest of the child.  In re Townsend
   Divorced spouses who lose custody of their children may still retain visitation rights and the legal status of parents; they retain rights to their child, subservient to the custodial spouse, but greater than those of the rest of the world.  People v. Abdullah
   Although parents are the natural guardians and custodians of their children, the rights of parents are not absolute; the state may intervene to terminate the parent’s right to the child’s continued custody and place it in a more suitable environment, if the circumstances warrant such action.  People ex rel. Dept’t of Children & Family Servs. V Robertson
   A natural parent has a superior right to custody of the child so long as it is in accord with the best interest of the child.  People ex rel. Lutz v. Lutz
   The paramount issue in determining custody of a child is the determination of what will be the best interest of the minor involved; the superior right of the natural parent to custody of his child can only be determined in the context of the best interest of that child, and may be limited by the conduct of such parent, or other circumstances.  Sholty v. Sholty
   The right of the parent supasses that of the stepmother who is in law a stranger; thus, the court erred in awarding the custody of the children to the stepmother.  McAdams v. McAdams
   As a party to the original proceeding, the mother had a right to petition for modification of the custody provisions of the decree, and as the mother of the child she had a natural right to custody, subject only to the like natural right of the father, and to the best interests and welfare of the child.  Horn v. Horn
   A court is only warranted in depriving a father of the custody of his child where the evidence discloses that the child is destitute, abandoned or dependent; that the father is living an immoral life or in vicious or disreputably circumstances; that he has neglected or treated the cruelly or unkindly or that he may so treat the child; that he is wanting in good principles or that he is illy adapted to the care of the child on account of defects in his mental or physical qualities which prevent him from being a kind and affectionate father.  Jarrett v. Jarrett
   Where the child’s mother is dead, the right of the father to custody is paramount, unless one or more of the following conditions is present: (a) the father is unfit or (b) by his conduct he has forfeited his right to custody.  Jarrett v. Jarrett
   Where the mother is dead, the law presumes the interest and welfare of the child to be best served in the custody of its father, and that the right of a parent to the custody of his child is superior to that of any other person when he is fit, can provide the necessities of life and where both contestants are equally proper persons, the father will be awarded the preference.  Jarrett v. Jarrett
   The rule that a parent has the right to the custody of his child against all the world, unless he has forfeited that right, was born of the natural desire of mankind to create and maintain a home; to deprive worth parents of their natural right to the custody of their children, where they have not forfeited that right, would undermine the home.  Jarrett v. Jarrett
   Legal precedent has always recognized the inherent right of a father to the custody of his motherless children and will even presume the father to be capable of caring for them until the contrary is clearly established; however, these rights of the father to the custody of such children are certainly not absolute, but are subject to being lost as a result of his misconduct, if the same might cause him to be unfit for such duties or if he has been found to have abandoned the children.  Scott v. Ashcraft
   The rights of the parent are superior to those of any other person, when that parent is a fit person to have the custody of children and is so circumstanced that he can provide the necessaries of life and administer to the requirements of such a charge; the mere fact that is not a proper basis for depriving an otherwise fit parent of custody.  Szewczyk v. Szewczyk

Non-Parent

___In General
   In a custody dispute, a court should give great weight to the claim of a third person who has had actual or legal custody of the child for a substantial period of time, especially if the evidence shows that the child has become an integral member of a true family unit.  In re Krause
   Prior long term actual or legal custody is not controlling and does not transfer the superior right from the natural parent to the third person; it remains simply a factor to consider in ascertaining what will best service the interests of the child.  In re Krause

___Award Custody
   Under a similar prior provision, the custody of a 15-year-old girl was given to her aunt, rather than her father.  People ex rel. Kuhm v. Weeks

___Grandparents
   Where petitioner grandparents did not plead any compelling reasons that would justify placing custody with them, natural father’s slight instability referred to in the petitioner’s brief was not of the type that would compel a court to deny him custody.  In re Strocher
   The law presumes that it is in the child’s best interest to be raised by the natural parent, and ordinarily the natural right of the father will prevail in a contest between him and the grandparents where will prevail in a contest between him and the grandparents where both parties are equally fit to care for the child.  In re Piccirilli
   Where the mother was found unfit, there was a presumption that custody by the father, who was found to be fit, would be in the best interest of the child; ordinarily the natural right of the father will prevail in a contest between him and the grandparents where both parties are equally fit to care for the child but not where the father had left the child with the other party for five years.  Look v. Look
   Where appellee, child’s father, made no effort to visit his child after leaving the appellant’s home until his wife died, even though he never lived a greater distance than 30 miles from the boy, it was not conducive to the child’s best interest to remove him from the stable and adequately wholesome environment of his maternal grandparent for the apparently primary purpose of placing him with his natural father, who was for practical purposes a stranger.  People ex rel. Edwards v. Livingston
   Placement of a minor with grandparent instead of to parents who were willing and fit was in contradiction to the rule that recognizes the superior right of the parent and, therefore, was reversed.  Stingley v. Wesch
   Where both the child’s natural father and maternal grandparents were fit and proper persons, well able and qualified to undertake the duties incident to the custody of the minor involved, and the father by his conduct had not forfeited his rights or abandoned his interest in his minor son, there was sufficient evidence to justify the order of the trial court awarding custody of the child to the father.  Sholty v. Sholty
   Where the record disclosed that from the date of the ten-year-old child’s birth the defendants, the child’s maternal grandparents had his exclusive control and custody, and that this arrangement was entirely satisfactory and agreeable with the child’s father for more than eight years and three months before appellant sought to change it, the best interests of the child required that it be not discontinued.  People ex rel. Hermann v. Jenkins
   Where a father petitioned to modify the divorce decree so as to award custody of his daughter to him, the finding of the chancellor that it was in the best interests of the child to remain with her grandmother wasnot against the manifestweight of the evidence.  Kokotekian v. Kokotekian
   Where the child will be well cared for in either home, that of his maternal grandmother or that of his father, the best interest of the child will serve if the custody is granted to the father.  Jarrett v. Jarrett
   Where the father of a child had been drafted into military service and desired that his parents have visitation rights, the mother was entitled to be heard and to offer evidence in opposition to his application for the right of visitation in the paternal grandparents.  Solomon v. Solomon
   The maternal grandmother was not entitled to obtain custody of her grandchild as against the father, who claim of fitness as a parent was unchallenged.  Schneeman v. Schneeman

Notice of Appeal
   Absence of notice to the representative of the minor child in a custody proceeding did not affect the appellate court’s jurisdiction to consider the appeal, although the better procedure here would have been to have been to have notified said minor through his duly court-appointed representative, and since the representative sought no leave to intervene in the appeal or to file a brief, the court would proceed to the merits of the appeal.  In re Leopando

Past Conduct
   Past immoral conduct which has been terminated will not render a parent unfit unless it can be shown that a child would be adversely affected by such conduct.  In re Combs
   Past misconduct, where the evidence indicates no probably future misconduct, should not be the basis for denying custody to the mother.  Drake v. Hohimer

   Where evidence of past indiscretions by the mother which occurred before her remarriage and where no claim was made by the custody of the children, although he had knowledge of the facts, the incidents complained of since her remarriage were palpably insufficient to prove that she was unfit to care for her children.  Laughlin v. Laughlin
   At a hearing on the father’s petition for modification of a divorce decree to give him custody of his children, evidence of facts pre-dating that decree could not be heard for the purpose of impeaching the mother’s fitness, but such evidence was competent where it related to other new circumstances having bearing on the question of the children’s welfare.  Kline v. Kline
   Past misconduct, where the evidence indicates no problem future misconduct, should not be a basis for denying custody to the mother.  Wolfrum v. Wolfrum
   Where prior misconduct of the mother gave no evidence of adverse effect on the future welfare of the child, the mother was able to care for her minor daughter and was not shown to lack the proper attributes of good motherhood, past misconduct, with no evidence indicating probable future misconduct, should not be a basis for denying custody to the mother.  Nye v. Nye

Physical Custody
   While the fact that the non-parent has had physical custody of the child for a substantial length of time does not neutralize the superior-right doctrine, it may, in a given case, be the determining factor in the custody decision.  Rose v. Potts

Physical Violence
   Allegations of father’s abusive conduct towards mother were relevant, and could properly be a decisive factor in the court’s determination as to custody.  In re Wiley
   The physical violence to the custodial parent witnessed by the children is but one of the factors the legislature has set forth for determining custody in the best interest of the children, and had the legislature wished to make this factor all controlling, it could have done so by the appropriate legislation.  Tranel v. Lutgen
   It was not error for the trial court to consider evidence pertaining to a brutal beating received by the wife at the hands of the husband in deciding the question of the custody of the parties’ infant child, where she was struck from behind on the head with such force as to propel her across the room, the husband then sat on her chest and began hitting her in the face with his fists, stripped off her clothes and forced her to engage in sexual relations, during which he continued to say, “I will kill you.” In re Williams
   Subsection (b) of this section does not relegate a wanton and brutal physical beating by the father of a child’s mother to be an act of no significance when determining which parent shall be granted custody.  In re Williams

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