Vetter v. Goff

REES, Justice. John Robert Vetter, by this habeas corpus proceeding, seeks to obtain the custody of his infant daughter, Cadden Jane Vetter, now two years of age. The child is in the custody of her maternal grandmother, Mrs. Vida Goff. The proof was heard orally by the chancellor, who entered a judgment dismissing the plaintiff's petition. Appellant met and married Dorothy Jane Goff, only child of appellee, while he was a member of the armed forces of the United States. He was discharged from the army in October, 1945, and thereafter he and his wife lived with her grandparents, Mr. and Mrs. Sam Downard, where appellee also lived. The child was born on December 31, 1945, and her mother, Dorothy Vetter, died on the following day, January 1, 1946. The proof shows that the child was born prematurely, weighed only five pounds and five ounces when taken to Mrs. Goff's home from the hospital about ten days after birth, was extremely delicate for many months, and still requires medical attention and special care, particularly in the preparation of her food. After the death of the child's mother, appellant went to the home of his parents to live. According to appellee, the appellant asked her to take the child and care for her, and a few weeks later when she sought to adopt the child the appellant refused to consent to the adoption, but said: 'I told you that you could have her, and I will never take her from you.' Appellant testified that he told appellee she could take care of the child until he was in a position to take her. The chancellor found that appellant agreed to surrender his statutory right to the custody of the child to appellee, and we are not disposed to disturb that finding. Appellant contends that the agreement, if any, was made when he was under great distress, and under the ruling of Turner v. Lee, 291 Ky. 395, 164 S.W.2d 954, should not be upheld, but there is proof that the agreement was reaffirmed at a later period. The proof in support of an agreement freely made is stronger than in the Turner case. Such an agreement is valid in this state, Thompson v. Childers, 231 Ky. 179, 21 S.W.2d 247, but, at most, only deprives the parent of his superior statutory right to custody and leaves for determination by a court of equity what is for the best interests of the child. Fraze v. Grundy, 300 Ky. 613, 189 S.W.2d 265; Staggs v. Sparks, 286 Ky. 398, 150 S.W.2d 690; Taylor v. Trosper, 275 Ky. 259, 121 S.W.2d 41; Bishop v. Bishop, 238 Ky. 702, 38 S.W.2d 657. Appellant remarried about ten months after his first wife's death, and soon thereafter instituted this proceeding.