Brown v. Brown

Ed. F. McFaddin, Justice (Dissenting). As I have stated in a previous dissenting opinion, 1 these child custody cases are the most serious ones we are called upon to decide. The best interest of the child is the primary concern; but to determine what is such best interest requires prayerful consideration.

The Judges making the majority opinion in the case at bar have earnestly and conscientiously tried to ascertain what is for the best interest of the little girl, Bobbie Sue Brown, now 6 years of age; and I trust future events will prove the majority to be correct. But, with what I hope is also equal earnestness and conscientiousness, I have likewise tried to ascertain what is for the best interest of the little child; and I am convinced that the little girl should remain with the aunt (Mrs. Paralee Sullivan), just as the Chancellor decreed; and we must remember that he personally saw the parties, whereas we see only the typed record.

Here is the situation as I visualize it: the father, Mr. Leonard Brown, never had the care and custody of the little girl; even during the lifetime of the natural mother the aunt, Mrs. Paralee Sullivan, had the care and custody of little Bobbie Sue Brown; the stepmother (Mrs. Tessie Brown) is only 22 years of age and has never reared any children; by the court order made, she suddenly has the responsibility of being a mother to the two older children, Betty Jean, age 9, and James Earl, age 7.

I think that the care and custody of two children is enough burden to put on the young stepmother at one time. She works at the State Health Office from 8:00 A.M. until 4:00 P.M. In order to get two children dressed and ready for school, with lunches prepared, and her husband off to work, and herself to work by eight o’clock, this stepmother will have to get up about 5:30 every morning. All this is going to prove terribly trying. I feel that we should see how she gets along with the care of the two older children before we trust her with a third child, the little girl, Bobbie Sue, only 6 years of age. If Mr. and Mrs. Brown successfully shoulder the responsibility of caring for the two older children, then a year from now, or later, the Court can, in the light of such experience, review the situation to see what would then be for the best interest of the little girl, Bobbie Sue.

As previously stated, the stepmother is at work from 8:00 A.M. to 4:00 P.M. The little girl will doubtless get out of school 3:30 each afternoon, since she is in the elementary grades. When she reaches home there will be no one to greet her and look after her until the stepmother gets there sometime after 4:15 P.M. Again, suppose the little girl should get sick or hurt at school, who is to care for her until the stepmother’s return home at 4:15 P.M.f During the time of school vacation the children will be alone all day without proper supervision which presents a worse problem than during the school term. Little girls should not be left to roam at will.

Contrast all the foregoing with the conditions that prevail in the home of the aunt, Mrs. Sullivan, where the real mother placed the little girl, and where the Chancellor ordered that she remain: the aunt stays at home all day; she has no other childrén to look after; she has no outside work; her life is devoted to looking after little Bobbie Sue whom she has practically reared to her present age. So for the next few years of the little girl’s life I think it would be better to leave her with her aunt, Mrs. Sullivan, who already knows her, rather than to place her with a “new mother” who does not know the little Bobbie Sue and who will certainly be very busily occupied with the two older children and with her work at the Health Department. Because of these reasons, I dissent from the majority.

Mr. Justice Holt concurs in this dissent. See Nutt v. Nutt, 214 Ark. 24 , 214 S. W. 2d 366 .