# Opposition Brief — Painter v. Bannister > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385602_1789%3A6 ## Record - **Collection:** Supreme Court brief - **Document type:** Opposition Brief - **Published:** January 1, 1966 - **Citation:** 385 U.S. 949 ## Text Lishare: SUPREME COURT. Ue & | No. 518. Offioe-Supreme Court, U.S. FILE DD OCT 2u 956 INTHE — —FORR BAYS, CLERK SUPREME. COURT OF THE UNITED STATES. OCTOBER TERM, 1966. ‘MARK WENDELL PAINTER, a’Minor, by Harold W. Pater” His Father and Next Friend, Petitioner, — V. DWIGHT ‘BANISTER and MARGARET BANNISTER, Husband and Wife, Respondents. On Petition for Writ of Certiorari to the Supreme Court of lowa. RESPONDENTS’ BRIEF IN OPPOSITION. JOHN L. BUTLER, JACK A. HALL, Eldora, lowa 50627, Of Counsel: LUNDY, BUTLER, WILSON & HALL, Eldora, lowa. October, 1966. Attorneys for Respondents, Sr. Louis Law Parntine Co, INC, 416 N. Highth Street. Cintral 1aa77 TABLE OF CONTENTS. a Page Questions Presented ........ aah on eewews 1 Statement .......:.06cc0e. SARE Soa teh Se RR 3 Failure to Timely Raise Constitutional Questions oe Reasons for Denying the Writ .............. kwon °- 19 Response to Amicus Curiae EE dbnudtehutenecee 36 ns snap: A LT ee eT CITY ot EEE 38 Cases: Altmiller v. Forsman, 76 Idaho 521, 285 P. 24 1064... 95 Armstrong v. Green, 260 Ala. 39, 68 So. 2d 834 ...... 25 Armstrong v. Manzo, 380 U. S. 545 ........0..... 20, 29 Bailey v. Mars, 183 Conn. 593, fs | ae 25 Baram v. Schwartz, 151 Conn. 315, 197 A. 2d 334 ny 5) Beach v. Leroy, 228 Ind. 122, 89 N. K. 2d 912°.. cee Bobroff v. Levin, 350 Ill. App. 501, 133 N. E. 24 177 25 Brown v. Beachler, 224 Ind. 477,68 N. FE. 24 915'.... 95 Carrere v. Prunty, 133 N. W. 2d 692 wapieerdnans 23, 26, 28 Childers v. Childers, 136 N. W. 2d Eo ae 23 Clifford v. Woodford, 83 Ariz. 257, 320 P. 2d 452 .. 28 Commonwealth v. Powers, 206 Pa. ‘S. 415, 212 A. 2d. Oe Uedduidecudeewascd cee Miiiertedeneewes 25 Commonwealth vy. Reed, 202 Pa. S. 558, 198 A. 2d 344 25 Dixon v. Duffy, 342 U. 8. 33 :...... 00000000005... 36 Drumb v. Keen, 47 Towa. 435° .............0....... 23 Durley v. Mayo, 351 U. 8. 277 «0.00. 0000..0.0.... 36 Ellison v. Platts, 236 Iowa 1211, 286 N. W. 413 <... 23 Ex Parte Burrus, 136 U. S. 586° ................... 21 ieee oe: ae il Farbes v. Warren, 184 Miss. 526, 186 So, 995 ow... 25 Fielding v. Highsmith, 152- Fla. 837, 13 So. 2d 208 .. 25. os Finken v. Porter, 246 Iowa 1345, 72 N. W. 2d 445 . 23 Giasepelli v. Florence Critinitide Home, 16 Tl. 2d 596, ee kas oe cc uae es ee ase, 25 _ Glass v. Bailey, 233 Ind. 266, 118 N. E. od om ...... 2 Griswold v. Connecticut, 381 U. S. 479 ........0.. 22 Halstead v. Halstead, 144 N. W. 2d 861 ...... i. Hamilton v iinet: 332 Ml App. 279, 75 N E. 2d DL iien edb ckied ace sek ekad tee ie - 25 - Hanson v. Denekla, Del. & Fla., 307 U. S. 235 .....: 18 ‘Henry v.. James, 222 Ark. 89, 257 S. W..2d 285 .... 25 Herr v. Lazor, 238 Iowa 518, 28 N. W. 2d 11........ 23 Hiteheock v. Thomason, Mun. Ct. of Appeals for D. C.,: i i Pr aN oe baa ew ear kines cedes cOeas - } In re Estate of Dr umbeller, 252. lowa-1378, 110 N. W. DW ee ee ee eet 38 mere: ; i... 357 S. W. 2d 197 ae - 25 In re Mathers, 371 Mich. 516, 124 N. W. 2d 878 . 24 Jacobs v. City of Chariton, 245 Towa 1378, 65 N. W. | SE £55 57 av ars ence eke Coke ees PP eer 18 _ Jensen v. Sorenson, 211 Iowa 354, 233 .N. W. 317 ... 23° Joiner v. Knieriem, 243 Iowa 470, 52 N. W. 2d'21 .... 23 King v. Shrum, 244 s. i eo: SPeereraee ame 25 _ Kouris v. Lunn, 136 N. ‘W. 2d 502 ..... bv ab eared 23, 24 Laub v. Caltobelotta, 33, Mise. 2d 397, 219 N. Y. 8. Rada lava COUN aut oa vee ee oe 28 - Long v. McIninch, 264 P. 2d 167 PL epee ater ee Ui 25 May v. Anderson, 345 U. S. 528 .................6. 20 Mayo v. Lakeland Highlands Canning Co., 309 U. S. RN a tec e sey raiee outa tien cov an piece 23° Meyer v. Nebraska, 262 .U. S. Oe oineces eehieae er Morris v.’ Jackson, 66 Wyo. 369, 212 P. 2d 78 ....... 25 McKay v. Mitzel, 137 N. W. 2d 792 .............. i. a McKay v. Ruffcorn, 247 Iowa 195, 73 N. W. 24 78... 23 iii ‘Osburn v. Roberts, 197 Okla. 206, 169 P. 2d 293 ..... 25. Paul v. Peniston, 235 La. 579, 105 S. 2d 228 ........ 25 Paulson v. Windelow, 236 Iowa 1011, 20 N. W. 2d 470 23 Pelton v. Halverson, 240 Iowa 184, 35 N. W. 2d 739.. 23 | Pierce v.'Society of Sisters, 268 U. S. 510 .......... i: Sgonaaas Prince v.. Massachusetts, S28 U. SB. 188 2k. ccc ews. 20 Raymond vy. Cotner, 175 Neb. 158, 120 N. W. 2d 899 28 Root v. Allen, 151 Colo. 311, 377 A 2: See 25 Russell v. Russell, 208 Okla. 41, 253 P. 2d 136 ...... 25 Scott v. Ashcroft, 342 II. App. 33, 95 N. E. 2d 122... 25 Selmen v. Phillips, 384 U. S. 210.................... 20 Shamenek vy. Allen, 179 Pa. S. 169, 116 A. 2d 336°... 25 Skinner v. Oklahoma, 316 U.S. ones 20 Smith v. Smith, 188 Tenn. 430, 220 S. W. 2d 627 . 25 Stout v. Massie, 140° W. Va. 731, 88 S. E. 2d 51...... 25 Stubbs v. Hammond, 135 N. W. 2d 540 ...........- 29 .: Taylor v. Taylor, 182 Okla. 11, 75 P. 2d 1132 ....... 250 Testerman v. Frederich, 323 S. W. 2d 522........... 25 m Thein v. Squires, 250 Iowa 1194, 97 N. W. 2d 156 . 24 Thumma v. Hartsook, 239 Md. 38, 210 A. 2d 151 . 4) - Trenton v. Christ, 216 Md. 418, 140 A. 2d 660 ...... 25 _ Trotter v. Pollan, 311 S. W. 2d 723 ..... eee ae 25 Wall v. Hardee, 240 N. C. 465, 82 S. E. dd 370 ....... 25, Wehrman v. Farmers & Merch. Sav. Bk., 221 Iowa 249, 259 N. W. 564 ...... aimee teres 2, 18 Werling v. Heggen, 208 Towa 908, 225 N. W. 952 ' 233 Young v. Ragen, 337 U. 8. 285 FE ee eee 36 Constitution and Statutes: United States’ Constitution— First Amendment Ree Mt Ries kG sttx deere conn sr0e7 Q Fourteenth - Amendment ........... iousadveccunan 2 Hawaii Sess. Laws, Act 83, § ee eee nee ere, 26 iv | Miscellaneous: ABA Section of Family. Law, 1963 Proceedings, Pp. Me Me eiba ka dew hi envete needa bea cep ealbenccavee%a — Adoption of a Minor, 343 Mass. 292, 178 N. E. 24, ES Relates eeu te roy hae eee axenic 25 15 A. L. R. 2d 432 me peacacdaawades vee 27 39 A. L. R. 2d 258, 264 ...... ee Or ee errr re 66 A. L. R. 2d 1410, 1413-1416 .....0....0.... 0.0 0ee 34 . 25 Am. Jur., Habeas Corpus, § 80, p.. 205 ..... mkeek ae 27 Am. Jur., Infants, § 108 ................. saiene ae 15 C. J. S., Conflict of Laws, 4 14 (d), p. 911°........ 38 , 67 C.J. S., Parent and Child, § 4, p. 630 ............ 38 67 C. J. S., Parent and Child, § 11 ........0...csc0ce 27 Comments of Harry M. Fain, 1963 Chairman of Com- mittee on Child Custody of the Section of Family — Law appearing. in ABA ae of Family Law, 1963 Proceedings Re Te, Se TP HPT ee ae Des Moines. Register, February 20, ae iexee’ 16 Foster and Freed, ‘‘Child bass. ti 39 N.Y. Univ. TR cs Sie ite Ree ee ne ea. 27 Goodrich, Conflict of Laws, Section 136; p. 272 .... 38 79 Harvard L. Rev. 1710, 1715 ........ peeldccescesees 37 "Madden; Persons and Domestic Relations, Hornbook Pee COED ck cscccecapeces aie aaa pias aiae 26 Minutes of Board of Directors of the “hesitate Civil _ Liberties Union of February 28,*1966 ............ 37 Peck, Domestic Relations (1930), pp. 371-372 . iene nes 27 Section of Family Law of the American Bar Associa- : tion... .4 feet es ee beeeee elon ee eect eeeeeeeeens lece No. 518. IN THE PE COURT OF THE UNITED STM OCTOBER TERM, 196. “MARK WENDELL PAINTER, a Minor; by Harold. W. Painter, ) His Father and Next Friend, Petitioner, V. ., DWIGHT BANNISTER and MARGARET BANNISTER, Husband and Wife, Respondents. s | On Petition for Writ of Certiorari to the - Supreme Court of lowa. — RESPONDENTS’ BRIEF IN OPPOSITION. . Respondents pray that Petitioner’ $ petition: for writ of — eats be deniéd. - QUESTIONS PRESENTED. Respondents are dissatisfied with FeGtinnae? s “Ques. tions Presented”, 1 and submit -the as in substitu- tion. ; 1. Due Process Clause of the Fourteenth Amendment. ‘Was this provision violated by the Supreme ‘Court of Iowa by its decision awarding legal custody of a child to his grandparents who have ‘had actual custody for - such'a period of time and under such circumstances that — it would: be detrimental to the. child’ s emotional health ‘to return him to his biological father, even though the . . father did not legally abandon the child and even though | ‘the father i is not ee unit “ 2. Due Process Clause of the Fourteenth. Amendment and . the First Améndment. Were these provisions violated by the Supreme Court of Iowa settling the custody of a minor child with his _ grandparents and basing its. decision upon the child’s best interests, when the Supreme Court of Iowa: incidentally took note of wide differences in. the religious views, phil- osophies of life and: modes of’ living between the biolog- ical. father. and the grandparents in considering the ad- justments the child would necessarily ” required to make if moved? : "3. Due Process Clause of the Fourteenth Amendment. Was: this provision violated by the Supreme Court of Iowa ‘in awarding legal custody of a minor child to his ‘grandparents upon the undisputed testimony of a com-' _ petent child psychologist, three’ public school teachers and a minister, and upon. other, evidence; that it would be highly detrimental to the child’s emotional health to re- oe quire him to be ,moved from his present ‘surroundings, - particularly in the absence of any offer of arraenee to the _ contrary? at ten fiat © FR et ee ‘ype Locate) fe Vain eS, i = 5 eae iii DM Re —— oe ; aN : : , = \ t. | STATEMENT, = / _ : Mr. and Mrs. Bannister, age 60 at the time of trial (R. 999, 476), live on an 80-acre farm. between‘ Ames and Gil- bert, Iowa, but do mot farm the land themselves... Their home is well-kept, comfortable and ‘spacious (Court’s Ex. 2, p. 4, par. 4, R. 572; and Exs. 48, 49, 50, R. 481-482), and their assets insure them a comfortable living (R. 493! 494, 555)... Both are college graduates,-as were their four’ daughters (R. 476, 555). Mr. Bannister has owned and published. various newspapers, and was in recent years an asso¢iate professor at Iowa State University at Ames (R. 555, 557). Both are regarded excellently in the com- munity of Gilbert,’ where Mr. Bannister has been.a school board member and -Sunday School teacher at the Congre-— _ gational Church (R. 534, 385, 529, 385). When she finished college, their daughter Jeanne went to Anchorage, Alaska, as society editor for the Anchorage Times. There she met: Harold Painter and married him April 6,°1957 (R. 478). | . Mr. Painter, age 34 at the time of trial, was born and raised. in the San Francisco area. At age 24% he was ___ placed by his parents in the foster home of Mr. and Mrs. Leo MeNelly (R. 23), becaise neither -his mother nor his father were allowed to have him (R: 177). The parents: were later divorced (R. 235). Harold flunked ont of: one , ‘1 Dr. Glenn R. Hawkes, a psychologist whose testimony will be given in more detail later, said the Bannisters are a very stable couple and have avery good marriage relationship based on respect and affection (R. 435). A Story County; Iowa, So- cial Welfare Department report prepared at the request of the trial court stated: “Dwight and Margaret Bannister are de- _~ lightful as individuals and as ‘a couple. This is no doubt due to their fine mental health... . They are very considerate. . They relate on a sincere and. meaningful level. They might be described as ‘real’ people. . . ; Both have a great deal of energy and zest for living. ... Mr. and Mrs. Bannister are intelligent and well educated. They are people who have continued to think and to grow ‘intellectually’ (Court’s Ex. 2, p. 2, pars. 2-10, R. 572). <— i nrc . a | - school (‘‘I just felt the agademie subjects were an im- position and unnecessary A. what I-had in mind.’’) and Jater out of a second after he had completed’ one year of high school (R. 25, 134). At *‘loose ends”’ (R,. 235) at age 17, he joined the Navy and went to Hawaii (R. 28, - 29). Later he attended’a two-year college but testified: ‘*¥ did not aétept my diploma . . . (because) there was ‘no reason for it’? (R. 31-32). He. enrolled in another college but quit because he did not ‘want to take the -Tequired courses, testifying: ‘‘I was quite disappointed at the level at which they were taught and actually quite - | bored with them’? (R. 31-34), - In ‘the ten years between the time he left college and the time of trial, Mr. Painter worked for six newspapers in six different cities (R. 34, 35, 42, 43,°46, 62, 81-83). .He left one job because of dissatisfaction with pay ‘(R. 35), one for less pay because he wanted a job’‘‘that would © be just enough to get by and require as little work as . possible (R. 42), one because he was asked to leave (R. 43), and one -becausé he ‘‘disliked it very much”’ (R. 44. 46). During the same period he worked for the publica- » tions department of Washington State. University but was \ 1844, 345, 348). -» asked to leave (R. 46),? did free lance writing at home during a period of unemployment (R. 50), and worked as ‘a graphic designer (R. 60). At the time of trial he - « worked at the Oakland Tribune, but was dissatisfied with his job and contemplated moving to Bérkeley, California (R, 128, 142-149). °°. >’ « * Prof. Henry. Grosshand; Mr. Painter’s supervisor at Wash- ington State University, testified: “He had a belief that in al- . most. any area he was qualified to make his own decisions... . I think at times what I would call self-confidence bordefed on arrogance. It was very difficult to present to him alternatives to his own way of approaching things. He did not take kindly to advice of almost any kind... . He believed his opinions about any aspect.of publishing were indisputable even if he possessed little or no training or experience in the particular subject” (R. alias Mark was born in 1958—his sister Janet in 1959 (R. 3,: 42). After being released fram Washington State Uni- versity in October of 1962, Mr. Painter had about eight Job offers’ but turned them all'down (R. 51). To support the family his wife, Jeanne, took a full-time job with a newspaper at Moscow, Idaho. She took the children © daily to nursery school at Moscow. while Mr. Painter _ Stayed home and wrote, cooked meals, washed dishes and - did the housework. On-December 6, 1962, Mark was left home hecause of illness. Jeanne and Janet, then age three, were on their way to Moseow when their automo- hile skidded and collided with a school bus. Jeanne was killed instantly, and Janet died four days later. (R. 47-48). Mr. Painter testified there were two funerals for Jeanne: The first was in his basement with no one but himself preserit. The second was -at a church at Pullman which he said was for the gratification of her friends, ‘‘and that was the only purpose as far as I was concerned.” At . the church funeral he wore a sports shirt and sweater with ‘no necktie (R. 54, 142). Jeanne and Janet were buried in the Bannister family plot at Ottumwa, Iowa; Mr.-Painter did not accompany their bodies to Iowa for the burials (R. 54, 55). - Continuing unemployed after his wife's death, Mr. Painter consumed her estate ‘of $4300-$4400, which in- cluded stocks given to Jeanne by the Bannisters with the hope they would ‘be used for the children’s education,® and also ineluded $250.00 and $343.26 belonging to Janet and Mark, respectively, of which Mr. Painter was trustee (R. 57-58, 130, 479). He used the money to buy $800- $1100 worth of camera qquipment, a car, a 24-foot sail .. §% Mr. Painter’s foster mother, Mrs. MeNelly, wrote the Ban- nisters in August of 1963: “I know ‘how Jean felt about Hal spending her money Because she told me and I’m sure she would . have wanted Hal to save most of it for Mark’s education and I = rg But he turned deaf ears...” (Defs, Dep. Ex. 1, p. 3; R. ). ; ars iz ’ sy ; —b6— - boat costing $3500, and for living expénses ¢(R. 58-60). He bought the boat intending to sell it at a profit, but sold it ‘at ‘a loss (R. 129). He gave some of his camera equipment away, sold some for $180, and returned some to the seller to terminate the contract (R. 136). _ He was in an accident and wrecked the ear he purchased, bought another ear which went .to pieces in ‘two days, and then bought a third. Not having had any ‘employment for over seven months (except a job fromm which he earned a total of $150), and having used all: the money. from. Jeanne’s estate and the children’s trust accounts, he was in financial straits so took a job with thé Contra Costa ‘Times in June or July of 1963 (R. 75-76).4 Most of the evidence regarding Mr. Painter’s religious ‘beliefs and. practices was offered by him. No objections were interposed to any questions asked by Respondents dealing with those matters. And, .as will be pointed out later, no suggestion was made in the trial court or in the Supreme Court of Iowa that such considerations were improper for constitutional or other reasons, until the petition for rehearing was. filed after the opinion of the Supreme Court of Iowa was handed do yn. The evidence introduced was this: Mr. Painter is agnostic (R. 134), belongs to no church or religious group’ (R..53), does not accept the Christ Diety (R. 133), says he has had no evidence presented to him that there isan infinite God (R. 149), and generally left it to Jeanne to take Mark to the Congregational Sunday Sehool, which she did regu- larly (R. 53). After Mr. Painter and Mark left Pullman 4 The record is replete with examples too lengthy to detail of Mr..Painter’s inability to handle money. Mrs. Betts, his natural mother, and Marylyn, his present’ wife, testified he is impractieal . about money (R. 173, 237, 238, 245). Both his first and second wives handled the family funds and check writing (R. 136, 162, 173, 274, 331). Jeanne had. commented in letters to her parents about his visionary ideas, laek of financial responsibility, and lack of responsibility toward small children (R. 500-502) ASIST aca eR NCCE alsa ean a aaa oui fm, ee shortly after Jeanne’s death, Mark was never taken to Sunday School while his father had ‘his custody (R. 133). Mr. Painter testified he has read a lot of Zen Buddhism and has been very much: influenced by it (R. 133-134). ‘The present Mrs. Painter is Catholic. If they had Mark’s . custody, they.would send him to a Congregational Chureh and Sunday School but, testified Mr. Painter: “In all” ; honesty, I would not insist on Mark going to church every } Sunday’’ (R. 116, 151). Throughout Mr. Painter’s testimony. there were refer- ences to his temper. For instance, he. said-he ‘‘blew his stack”? at his wife (R. 144) and, referring to the Ban- nisters, said: ‘‘I wish I would have strangled them both—- I wish I had”’ (R. 145). After the accident Mrs. Betts and Mrs. MeNelly stayed with Mr. Painter and Mark as long as they’ remained in . Pullman (R. 264). In February of 1963 Mark stayed in - MeNellys’ trailer for three weeks (R. 141), .then Mr. Painter rented a house in Glen Ellyn for three and a half. months for he and Mark during which ‘time -Mark would sometimes stay with MeNellys (R. 59-60, 141). He then “moved to Walnut Creek into a very nice apartment with a swimming pool which. had a sign on it saying children Would be allowed to visit Sundays (R. 481), and he sent Mark to live’ with MeNellys, who were just leaving on a oneor two month fishing trip (R, 63, 141-142). Mr. Painter did not pay the MéeNellys anything for Mark’s keep (R. _ 66, 368), but they thought he should ‘‘so he would under- stand there was a responsibility that a father had to the child’ (R. 206-207). They mentioned it to him (Defs. Dep. Ex. 1, pp. 1-2, R. 375), and Mr. Painter responded by calling the Bannisters and asking them to.take Mark to Towa to get him started in school (R. 67, 480). He did not tell the MeNellys that Mark was going to Iowa until the Bannisters arrived to get him, notwithstanding that . o 9 Q a 2a ' Mark was then living with MeNellys. Naturally MeNellys _ were surprised® (R. 194, 207). Mr. Painter testified he thought Mark would be better off with the Bannisters because they were educated, sensitive people (R. 66), and felt Mark should be in a permanent home where he could _ start school and not have it-interrupted—that he should he settled with people who were settled (R. 63, 64), When Mark came to Iowa in July of 1963, at age five, he would. have flights of faney and seemed incapable of distinguishing fact from fiction (R. 512, 513). Mr. Painter had been concerned about his exaggerations (R. 140). Mark also had serious behavioral problems, He was very belligerent to children who were smaller than he (R. 485) .and always wanted to prove he was right. His eating habits were not good. He was aggressive toward animals; he would: throw rocks at dogs which were trapped in the basement entryway and would not let them escape (R. 486). At school he would grab other children by the neck (R. 524) and once choked a little boy as hard as he could. His music teacher told of his pushing a child down the stairs, slapping another on the ear, and pulling the chair out from under another (R. 544). On the school bus ho pushed a girl out of her seat into the aisle, and twice the bus driver had to stop the bus, go back and foreibly set him down in his seat (R. 385-386). The other children did not want to play. with him beeanse he did not know how to play (R. 540), and would avoid ‘him on the bus because otherwise. he would attack them (R. 398).6 Mr. 5 Mrs. MeNelly wrote the Bannisters: “I can’t believe a little money could make such a difference in’ a person, or maybe it brings out,the real person,” and added that she hoped he would change soon and be a gond father to Mark (Defs’. Dep. Ex. 1. pp. 1, 5, R. 375). ® When he misbehaved toward other children, his music teacher testified, he was not. just playing, but was upset. (R. 548). The bus driver said he was very aggressive and com- pletely. undisciplined (R. 385). The kindergarten teacher, who s ae . Painter testified about deportment trouble Mark was hav- ing at Pullman (R. 52), and that when fighting he had to be stopped from hurting other children (R. 68}. Yet when ‘Mrs. Bannister tried to diseuss these problems with Mr. Painter-on the telephone, she was rebuifed (R. 514). Mark began kindergarten after coming: to Iowa. “The trial of this ease occurred after his completion of first ' grade. He is now in third grade at the Gilbert school. His behavior began improving about Christmas time of his kindergarten year (R. 486), and by the time of trial he had made a great deal of improvement (R. 544, 525, 537, 540, 386, 487). Mark’s I. Q. is 120-130, which is considerably above average (R. 417). He attends Sunday School and church practically every Sunday at the Gilbert Congrega- tional Church (R. 384, 547). The high quality of care Mark _ receives in the Bannister home is undisputed? (R. 483-484, 549, 519, 526, 487, 493). | Mr. Painter wrote Mark ‘‘once a month or whenever the spirit moved me’’ (R. 72). Between Christmas of 1963 and June of 1964, Mr. Painter promised on four occasions to. visit Mark, but failed each time (R. 72, 77,489, Ex. 26, p. 3). Bannisters had a letter from Painter July 14, 1964, and next heard. from him Labor Day,-saying he would visit them and Mark September 9. On September 9 he called saying he would be ‘there September 16, 1964 (R. 489), at which time he did make his first visit to Iowa. Regarding that visit, he testified he ‘‘was not sure about-my interest as to taking Mark back in September. . . . The same un- stable situation existed that existed at the time I sent him had 20 years teaching experience, said he was emotionally dis- turbed and acted like he did not know how to behave (R. 523- 524). Another, who had taught over eight years, said he had the worst emotional problems she had ever seen (R. 540). * At the trial Mr. Painter testified: “I think Mark has had a good home with the Bannisters . . . I also recognized the Bannis- ters were very good people” (R. 140). ; & eet nel ae ee vom ae to ‘saa so I was apprehensive about this disr upting of him’? (R. 83-84). He did not try to take Mark with him at that time (R. 507). He married Marylyn Hanson Novem- ber 28, 1964 (R. 23), but did not seek more’ s return until June at 1965, The marriage to Miss Hanson tevininated a long period - of uncertainty about Painter’s remarriage plans. ‘He had considered martying a Helen-Boutell in November of 1963 (R. 144). But on April 13, 1964, he wrote the Bannisters: ‘“‘The marriage, I’m afraid, is off. After a certain period of fruitful negotiations, I was told that she, at age 37, is not ready to settle down—plus a certain incompatability hegan to express itself. So the outcome seems perfectly reasonable and ‘acceptable.’ As a $2-a-crack fortune teller once told me, I’m apt to put my romantic interest on an- ideal pedestal of my own making and then be completely frustrated (when) my ideal is violated.’ In June of 1964 he called the Bannisters saying he was going to marry Marylyn Hanson in July (R. 488-489). That date was changed several times; Painter testified: ‘‘I became very _ pushy. I wanted to get married ‘right away and settle things right away.and Marylyn got nervous about it.’ Their marriage plans remained uncertain until, November (R. 143). ‘ ~ When Bannisters took Mark in July of 1963, Mr. Ban- ; nister suggested to Mr. Painter that he send $50 a month. _ for Mark’s support. Painter turned away and said nothing (R. 564). Bannisters later repeated the suggestion in a letter (R. 74). During the’ more than two years’ which Mark was in Iowa before the. trial, Mr. Painter sent-a total of $135, plus money for a Christmas present (R. 488)." * Mrs. MeNelly wrote that Painter did not want to spend one cent on Mark, that he was “using” the Bannisters so he could spend his money on himself, and that “There are laws to protect youngsters and they should be used in such cases” (Defs’. Dep. ‘Ex. 1, R. 375). - oa. In June of 1965 the Painters and Bannisters had a dis- cussion in the Bannister home, ending with Mr. Bannister saying he would not permit the Painters to take Mark (R. 90-102). The next day the Painters, although having their ; California-licensed car with them, rented an Iowa car with lowa plates so as not to be recognized and went to Mark’s school. Mr. Painter testified: ‘“We cruised, and just ob-: served the school, looked for sentries, which we think we found one.’’ They’ saw Mark on the playground and told the teacher they were going to take him to California. When the teacher put. her hands on Mark they removed them, grabbed the boy and ran for the car: with Mrs. Painter blocking the teacher who was frantically chasing them. The superintendent intervened in time, and Mark stayed at school. He was shocked, s nned, frightened and erying, and spent the rest. of the pan staring into space (R. 103-104, 131, 133, 392, 534,542). This habeas ° _ corpus action followed. made to them about-Mr. Painter-and the Bannisters. He told Mrs. Felber, a neighbor: ‘“We are a family now’”’ (R. 554). He’ told Mrs. Mumm, a teacher, that his father "was always going to do things for him or come to visit him, and would forget (R. 546). He told Mrs. Sherwood, a teacher: ‘*My’ father wants me to live with him, but I don’t want to go’ (R. 538). He told the Story County Welfare Worker that he definitely wants’ to stay with the Bannisters (Court’s Ex. 2, p. 2, R. 572), and told Dr. Hawkes, the child psychologist, the same thing (R. 424, 425). : i Mark’s thrée teachers and his minister all testified that ‘moving Mark from the Bannister home would have a’ serious psychological effect’ on him (R. 528, 536, 539, | y Several witnesses related comments which Mark had 546-547). The Story County, Iowa, Social Welfare De- - partment also recommended that he remain in the Ban- nister home. — - 2 Glenn R. Hawkes is a child psychologist and, at the time of trial, had been head of the Department of Child Development at*Iowa State University for 12 years.® He spent 25 hours evaluating Mark and the Bannisters (R. 498-411). Following is a synopsis of his testimony: Mark is now in his latency period of development, ich is the very critical stage where he is develop- ng most of his concepts, his attitudes about himself ‘and maleness, and his attitudes about thé’ world (R. -419-430). hen he came to Iowa from California, Mark was gressive, frightened, ‘had difficulty sleeping, and had not internalized-many controls. ‘He was anxious nd unsettled (R..428). He remembers, before com- ing to live with the Bannisters, -of wondering what was going to happen tp him, who was. in charge of him, and who he could turn to .(R. 420-421). He remembers wondering where his father was, and _® Dr. Hawkes has a bachelor’s and master’s degree: in psy- . chology, and doctor’s degree in child- psychology from Cornell University. He has lectured and conducted workshops at .a number of American Universities, has written some 40 research | articles in professional journals, is co-author of the book, “Be- havior ‘in Child Development From Five to Twelve,” and of an- other book on the educationally disadvantaged child. - He. be- longs to a number of professional associations, and is a past president .of the National Association for Education of Young Children. : Dr. Hawkes was on the staff of the 1960 White House Con- ference on Children and Youth, was a consultant with the Ford Foundation in India, has been a consultant for several U. S. - Government: agencies and the United Nations. He is an.educa-. tional consultant with the national project “Head Start”. For four and a half years he served as a psychologist in the Armed Forces. aw, * He is consulting or has consulted with the Iowa, Children’s Home Society, which is a foster home program, the Elizabeth McCormick Memorial Fund in Chicago, which does child re: | search, the Toledo Welfare Agency, Toledo, Ohio, the welfare agency at Fort Worth, Texas, and other agencies. For a number of years he has been a practicing child psy- chologist on a private basis (R. 404, 408), : .) ee being frightened because he was not there (R. 423). He remembers being yelled \at and someone being angry with him, and thinks it was his father (R. 424-425). OS Aes Pee A father figure is important in ‘a child’s’ develop- ment because he typifies maleness for the child (R. - 427): - Before coniing to the Bannisters, Mark was confused about .the father figure. He was not used to having one Aecause Mr. Painter and. Mr. MeNelly shared what semblance of a father figure there was (R. 427-428). The father image was very tarnished, if it existed at all (R. 463). He is very confused about what to call Mr. Painter, and vacillates between calling him ‘‘my father’, ‘Hal’ and ‘“‘that man’? hd (R. 425). He felt he could not depend on Mr. Painter © (R. 425, 474-475). He remembers very little about his biological mother‘ and sister. (R. 423). | | Since coming to Iowa, Mark is making great ‘prog- ress toward emotional adjustment (R. 415): He does havé some anxieties which must be suppressed materially (R. 415), however these can be faced in a healthy situation (R. 415). He has quite a lot of aggression but it is nnder. control (R: 420). Mark has spent much time since coming with the Bannisters in determining who he is and where he. fits into his environment. This is normal for a child between ages five and seven (R. 430).- He sees his present family as a cooperative unit, and sees a place for each person in it, ineluding himself (R. 420). He sees his grandfather as his father figure and his grandmother as his mother figure (R. 414). He has a positive attitude toward families, and it is clear that he structures his family around the Bannisters (R. 414). He has a very warm feeling for Mr. Ban- nister; they have the kind of relationship that all fathers would hope they could have with their sons | (R. 426). His relationship. with Mrs. Bannister is ny fine and respectful, and there is a ‘warm bond of af- fection (R. 428). SAL The best way to develop a sense of responsibility . in a child is for the parents to be responsible people so. as to set_a model by which a child builds his life (R: 418). Mark is very much concerned about good -. behavior, and is in the proeess of. deciding, through adult. models, what is tolerable behavior and what is not (R. 420). Mark ‘is very pleased with the progress he has. made in school (R. 421, ll. 21-2 2). He is made to feel, by the adults around him, that he is an adequate person (R. 422). He has adequate contact with chil- dren his own age (R. 456). I think Mark should be placed with the. siete on a permanent’ basis. The unsettled conditions ‘throughout his life up to the point will cumulatively become more and moré detrimental if they are al- lowed to persist (R. 429). It is very critical that ‘he have a permanent arrangement. If he were four or five ‘years younger, it would be less important, ‘because there would: be time to make up. whatever deficiencies might oceur because of moving from one place to another. But at this point in.Mark’s life _it is eritical that he be-established in one re (R. 430). Pe il While he has been with the Bannisters, he has been through a process of developing a concept of his role’, in life; it is now well established. By remaining with the Bannisters he ean build on the foundation he has. - He does not have to go back, pick up the pieces, and start over’ ‘again (R. 431). Mark is already in a home where he has ae mother and father figure. To move him from this is a rather unthinkable solution to the problem (R. 443). This is true even if you assumethe best about Mr. and Mrs. Painter (R. 441), e | ae Leaving Mark with the Bannisters is the only tenable solution (R. 443); | i. o.° | If the natural parents are suitable persons, a child psychologist would normally recommend that the child be with them only if the chifd had continuously | lived with them in the past (R. 443). The biological father is necessary only for conception. The psycho- logical father is most important. One has to’ earn being a father (R. 426). The persons who become the important figures in a-child’s life are the-mother and father figures, whether there is; a biological: tie or not. If not, I think our whole system. of adoption — would jbe a farce (R. 443), . _ If Mark were disrupted at this point, if he is with- drawn from the parental figures established in his own mind and withdrawn from his ‘present environ- ment, he will become unsettled and anxious all over again. There would be a process of rebuilding which would be much more painful, aired the chance of suc- cess would be much less likely in the second case (RR. 430-432), in fee If Mark were moved, there is, in my opinion, a | 90% chance: (R. 445) that he would either develop a great deal of aggression or would withdraw: (R. 432). Because of the built-ap anxiety and) potential aggression in Mark at the present time, he would _ probably become aggressive (R. 434), which would be acted out in terms of destructive tendencies, A great deal of juvenile delinquents are aggressive — people beeause of inadequacy in their own background ‘ _(R. 433). If he withdrew, he would become an in, | adequate person to the point that he- wouid not be_ a productive member of society (R. 432,°433). It is widely recognized in psychological works ‘that adop- tions of children from six to eight years old, if there — is a prior history of instability, are usually unsatis- - factory (R. 447). . ~~“ — 16 — . Tam appalled at the tremendous task’ Mr. Painter -would have -if Mark were to return fo him, because he ‘would have, to build a. relationship from scratch. -s There is essentially nothing on which to build at the ” present time. Mark.is aware Mr, Painter is his father, «but he is.not very clear about what this means, . In . his own mind, the father figure is Mr. Bannister. | _, think the prognosis would not be good (R. 460-461).1 Petitioner’s statement is extremely slanted—to the point of inaceuraey in places. For example, on. page 10 the Petition diseusses Painter and his: wife going to the. school And attempting to take Mark in June of 1965, stating: ° ‘ear “. the Painters desisted rather. than use. anything resembling force to ‘assert Painter’s unquestionable Tight _~*, to return: his,son to his home.’’ Mr, Painter’s own testi- ‘mony regarding the incident was: \. | . “T-identified myself (to Mark’s teacher) as Mark’s father, and introduced her to Marylyn.- ‘I asked the teacher a few questions about how Mark was getting | Ake + + "10 We question the propriety of Petitioner, in footnote 3 on page 17 and footnote 21 on page 35, setting out views of doctors which were not offered in evidence and were riot before the Supreme Court. of lowa when it decided this, ease. The foot- notes -are’intended ‘to bolster Petitioner’s assertion on page 25 that Dr’ Hawkes’. views “do not represent the opinion of the psyehological profession geherally or of other experts in the matters of child care.” In rebuttal we -set out from the Des Moines Register-of February 20, 1966,. the following . quotation from Richard J. Jenkins, M. D., Professor of Child Psychiatry ‘and Chitf of. Child Psychiatry Service at the State University of Iowa, Towa City: i Rea “The decision before the court was whether Mark was to be removed from the home ‘of his grandparents who are presently meeting his needs. .. . It seems’.clear from the evidence citéd that Mark has had a difficult past, and that It is reported that he has made good progress. In @ crucial - game one does not pull a Winning pitcher. The issue in . this case is the welfaré of the child as against the ‘rights’ of a father. Children- are -not possessions. They should never be so. regarded.” : “ a Daa mi | : he showed the effects of it when the Banniisters took him. ? a ee along in school. Then I handed her this ecard and said, ‘I am aeting in the law, Mrs. Sherman, I he- lieve. We are taking Mark with. us: to ‘return to - California. Do you have any questions, please call my attorney:’ We picked Mark up and started to- ward the car. ‘The woman put her hands on Mark. _I dori’t- believe’ she said anything, but I said, ‘Madam, ' please take your hands off my son. You are violating — the law.’ She wouldn’t. _Marylyn (Painter’s wife) stepped in and removed her hands from Mark’s arm and actually, blocked the woman.’ I put Mark in my arms, said, ‘Here we go, Bucko, the game is on,’ and ran with him to the ear.’’ At pages 12-15 of his Petition, Petitioner suggests that Respondents have displayed an improper attitude toward him.: The Petitioner fails to point out the undisputed evi- dence that Bannisters have never been critical of Mr. ' Painter in Mark’s presence (R. 565), and regularly wrote him and other California relatives: about Mark’s progress in schoo] (R. 247). Mr. Painter promised on no less than five occasions that he would come to Towa to visit the hoy. Each time the grandparents prepared for and told Mark his father would be coming, but each time Plaintiff found reasons-not to come. It. was not ‘until Mark had heen in Towa for a year and three months that Painter first visited his son (R. 489). After so many disappoint- ments for the child, -it is little wonder that Bannisters stopped talking to him’ about his father and about the expected visits. Painter indicated his lack of interest in Mark in ways other than failing to visit and failing to. furnish support. For. instance, Mrs. Rannister sent Painter ‘some of Mark’s kindergarten drawings to which he re- sponded: “T got that pile of junk of Mark’s that -you sent me’’ (R. 514), On P. 10 of his Petition, Petitioner notes parenthetically that he has, since the trial, taken a job at the Job Corps = oe camp in Pleasanton, Calif. Since he has chosen to depart from the record to give the Court this information, we believe the information with respect to his post-trial em- ployment and housing should be accurate... He did take ‘ employment with the Job Corps at Pleasanton, but the fact is he has now left even that employment and has moved from. his Walnut Creek home to Brookdale, Cali- fornia. The record and Petition for Writ are thus barren of any information regarding whether. Petitioner is now empleyed, his income, if any, the housing and care which he could furnish Mark if he had his eustody, the probable ‘duration of his residence at Brookdale, the “hours he works—if he is employed, whetlier Mrs. Painter is work- ing, or any information whatever about the life Mark would be exposed to if sént to live with Petitioner. The only thing which remains the same as at the time of trial is that Petitioner does not stay with a job or in a com- munity very long at a time. Mark needs stability and permaneney rather than constant uprooting. FAILURE TO TIMELY RAISE CONSTITUTIONAL QUESTIONS. _ The etnbttetinen’ questions presented in the Petition were not timely raised in the Towa ‘courts. They were first presented in the Petition for Rehearing, which jis too late since there was prior opportunity to raise them. Hanson v. Denckla, Del. & Fla., 357 U. S. 235, 78 S. ('t. 1228, 2 L. Ed. 2d ‘1283. The re Court of Iowa de- ciined to consider these. constitutional questions when first raised in the Petition for Rehearing, upon well-estab-. lished Iowa authority that constitutional questions must be urged in the trial court and upon the original submis- sion of the appeal to the Supreme Court.’ Jacobs v. City. of Chariton, 245 Iowa 1378, 65 N. W. 2d 561; Wehrman | v. Farmers & Merch. Sav. Bk., 221. Iowa 949, 264, 259 CN Neat. Vil theeE Ab btateh ti Dinh cistald tibial. —_ N. W. 564. Petitioner could have timely raised these questions in the following.ways: . 6 (1) By not himself introducing evidence -eonecern- ing his religious beliefs and practices (e. g., R. 26, 27, 53), and by objecting to that which was intro- duced by Respondents, which he did not do (e. g., R. 133). Had he felt that such matters were irrelevant, he was required to make his record at the time the evidence was received. . (2) By raising such questions upon the original submission of this.case in the Supreme Court of Iowa. Such matters were presented in Respondent’s (Appel- lant’s) ‘brief upon the original submission ‘and were responded to by Appellee without any claim that the Federal Constitution precluded their consideration. (E. g., Petitioner’s (Appellant’s) original brief in Supreme Court of Iowa, p. 27 et seq.) Also, Respond- ent’s (Appellants) argued in their original brief in the Supreme Court of Towa that Mark’s .custody should remain with them even if there was no paren-* tal relinquishment or unfitness (P. 68 of Appellants’ Brief, first paragraph). Appellee disagreed with this ; assertion in his original brief (P. 114 et seq.), but . nowhere suggested that a constitutional question was involved, -REASONS FOR DENYING THE WRIT. 1. (a) Petitioner does not have a ‘‘family relation- ship’’ with Mark because he has not had his custody since July of 1963, United States Supreme Court cases cited by Petitioner do not consider substantive child custody questions, and have no reference to a situation where Petitioner does not have actual custody and con. trol of the child. No federal question is presented. | In this section, in the preliminary paragraph on P. 18, and throughout his ‘entire petition Petitioner speaks of Neetneiene f —_ ae oe the decision in this case as having’ destroyed an existing family relationship between him and Mark, ignoring the fact that Mark has lived with Respondents since July of 1963. In cases of this kind the question is not whether the child shall be removed from the home of the parent, but rather whether the child shall be removed from the home of the non-parents who have had his actual custody for a substantial period of time. Mark’s family relation- ship is with the Respondents. The question is, was the Iowa: court required to destroy that relationship—the only meaningful one the boy has—to satisfy what Peti- -tioner claims are his ‘‘rights’’ as the natural parent. The United States Supreme Court. cases’ principally relied upon by Petitioner on pp. 18 and 19 of his petition have no factional similarity to the case at bar. None involve the substantive questions of change of custody. In those in which the court spoke of rights of parents, the parents had, actual custody and an actual family 1 re- lationship existed. ' The case of Prince v. Massachusetts, 321 U. S. 158, in- volved the constitutionality of a child labor statute whereunder children were sought to be prohibited from distributing Jehovah Witness literature on the strects. The question revolved about the constitutional rights of the parents who were the established eustodians. This ‘was not a custody case. Nor is Skinner v. Oklahoma, 316 U. Ss. 535, a custody case. There the question was whether the statute. pro- -viding for vasectomy for certain criminals was consti- tutionally valid. - May v. eden, 345 U. S. 528, dealt with whether Wisconsin had constitutional jurisdiction to adjudicate. a custody question, and the case noted that the issue was . separated from that of the future interest of the children. Selmen v. Phillips, 384 U. S. 210, was.a memorandum decision approving Armstrong v. ‘Manzo, 380.U. S. 545. L- - - ‘ ————— " —_ nn AAP ome A AP Pte DM rhe Geb nt tay 9 se Oi apladeat ee ee ee ea ee et ay ” ¥ - — a* ‘ . . P The latter case,holds only that due process requires that adather be given reasonable notice of a hearing to adopt his child and does not involve eustody. Pierce v. Society of Sisters, 268 U. S. 510, held a statute requiring children to attend publie (not private) schools unreasonably interfered with the liberty of parents and guardians to direct the upbringing and education of children under their control. Custody was not involved. Meyer v. Nebraska, 262 U. S. 390, held a Nebraska statute unconstitutional which prohibited the teaching of any language except English below the eighth grade. Custody was not there the issue. The opinion noted. the — statute did not: seek to effect a valid state purpose, To be meaningful, whatever language is cited from'these eases by petitioner must be read in context. These are not child custody cases and the statements quoted are not relevant to a situation where the parent does not have custody of the child. Custody of Mark Painter must be determined by his hest interests, not by abstract state- ments of the Court relating to family privileges, security and integrity which, as between the boy and petitioner, are non-existent. The constitutional questions now arghed were not timely presented to the Iowa courts. But in any event, no fed- eral question is presented here to justify the granting of - the writ requested. This was made clear as long ago as 1889 in Ex parte Burrus, 136 U. S..586. There a father sought custody of his child from the grandparents. The ‘thild was taken to the grandparents’ home during the mother’s terminal illness. The father remarried and wanted the child returned. A writ of habeas corpus was ° issued by a United States District Court requiring sur- render of custody to the father, and the grandfather was imprisoned for contempt when he disobeyed the writ. The _ ’ nl eetacinseesietnctest aun : ° . . co? - United grandfather, and in so doing made this pronouncement: 22 v | States Supreme Court ordered the release of the ' ‘The whole subject of tle domestic relations of husband and wife, parent and child, belongs to the Aaws of the States and not to the laws of the United States. As to the right to the control and: possession of this child, as it is contested by its father and its grandfather, it is one in regard ‘to whieh neither the '.Congress of the United States nor any authority of the United’ States has - any = special jurisdiction. Whether the one or the other is entitled to the possés- sion does not,depend upon any act of Congress, or any treaty of the United States: or its Constitution.’’ (Emphasis added.). — Le The same principle isannounced in Ohio v. Popovici, 280 U. S. 379. (b) The decision in this case was in furtherance of a ‘ valid state purpose, to-wit, protecting children within ‘Iowa, and was consistent with a large body of Iowa child. _ -, custody law. | Petitioner also relies upon Griswold v. Connecticut, 381 U. S. 479, but in a concurring opinion in that case it was pointed out that the Connecticut law was ‘not necessary to accomplish any permissible state policy. Personal rights guaranteed by the Constitution are ‘never viewed in a vacuum. They are always weighed against the public necessities involved. Even Petitioner recognizes the right of the state to remove a delinquent ., . child from a home and institutionalize him, even though the parents are fit and are not guilty ‘of abandonment, and the right of the state to prevent truancy or give. medical treatment which the parents, perhaps for religious reasons, refuse to provide (Petition for Rehearing, filed in Supreme Court of Iowa, p. 34, footnote 1). The obvious - ’ * act, * ro oe — —— : “s : = _ on . = BS RR Rl Aig A Nat ae alan a crete ded doin) BS hes Pimend stiena Liiaky Sm herr endorser reat, ONG Orin ee NN Rb ACA Hiab lh Utara delet Ms Si VLAD AOA DNA tr btale Se —23— state purpose in the case at bar and similar cases is to ‘protect children living: within its boundaries. That such a state policy is permissible is not open to question. That the action of the state in awarding custody to non-parents who haye actual custody, where the child’s welfare so requires, is necessary to. effectuate such a legitimate state purpose seems equally unquestionable, Petitioner’s argu- ment must, of necessity, resolve itself ‘into a claim that it was not necessary to Mark’s welfare to award him to ‘the Bannisters in the case at bar, and thus the fathé@n’s presumptive right must be enforced. This is no more than an argument of what the evidence shows. ~The United States Supreme Court in such a case will not weigh the evidence ‘and. base a constitutional holding on what “it deems to be a preponderance. Proof of unconstitutionality © must be unequivocal. Mayo v. Lakeland Highlands: Can- ., ning Co., 309. U. 8. 310, : . ‘Iowa is firmly committed to-the “best interest”? concept. Towa Rule of Civil Procedure 344 (f) (15) states: ‘Tn child custody cases the first -and governing consideration of the courts must be the hest interest of the child.” The "Iowa Court, while: giving weight to the parental prefer- ence, has for years (contrary to Petitioner’s assertion on pp. 23-24) held the child’s welfare to be the paramount consideration in cases where the child has been separated from his parents and they seek to regain custody." The ™ Drumb v. Keen, 47 Towa 435 (1877): Werling v. ‘Heggen, 208 Towa 908, 225 N. W. 952 ( 1929) ; Jensen v. Sorenson,. 211 Towa 354, 233 N. W. 317 ( 1930) ;. Ellison v. Platts, 236 Towa 41011. 20 N. W. 24 470 (1945); Herr y. Lazor, 238 Towa 518, 28 N. W. 2d 11 ( 1947); Pelton v. Halverson, 240 Iowa 184, 35 N. W. 2d°759; Joiner v. Knieriem, 243 Towa 470. 52 .N. W. 2a_ _ 21 (1952); Durst v. Roach, 245 Towa 342,-62 N: W. 2a 159 (1954); Finken v. Porter, 246 Iowa 1345. 72 N. W. ‘2d 445 (1955) ;.MeKay v. Ruffeorn, 247 Iowa 195, 73 N. W. 2a 78 ‘(1955); Carrere v. Prunty, 133 N. W. 2d 692 (Towa,. 1965) ; Childers. v; Childers, 186 N. W. 24 268 (Iowa, 1965); Kouris v. a a lg n> X\ a “Nu, 3 most recent child custody decision of the Supreme Court of Iowa involving a parent and non-parent is Halstead v. Halstead, 144 N. W. 2d 861. That decision speaks of the policy considerations of Iowa in child custody cases, and we respectfully refer the Court to that opinion for a_con- cise statement of the rationale ‘of the Towa Court in this type of case. The separation of a child from his parents is often tragic. But « once the separation’ is complete and the child adjusts to this new family, it is doubly tragic to uproot-him a second time. ‘This fact-has led the Iowa Court to say a number of times that where a child has lived in a home for a period of time; has formed close attachments, and is well cared for, he should not be moved therefrom except for the most cogent reasons.1? ‘(c) The United States Constitution .does not require that a child living with non-parents for a substantial pe- riod of time be returned upon request to the parent if he is not morally unfit or not guilty of abandonment. A court may make such an award of custody as best serves the child’s welfare. Petitioner asks this etiwt for a Writ of Certiorari on the basis that the Constitution of the United States prohibits the award of a child to a non-parent in a custody dispute with the natural parent, absent a finding of parental un- fitness or abandonment. As stated by one Michigan jurist, such a rele would carry us back ‘like the Connecticut Yankee to‘ the deivttie ages ‘of Englich law and customs, ... (and make) an in- nocent youngster an infamous idol of the discredited ¢ rule that parental. ‘rights’ reign over the best interest’ of the child.’ 12 Kouris v. Lunn, 136 N. W. 2d 502 (Iowa, 1965) ; Thein v. ‘Squires, 250 Iowa 1194, 97 N. W. 2d 156 (1959). 13 In Re Mathers, 371 Mich. 516, 124 N. W. 2d 878. 889. WIL hs See — 25 — | The highest courts of at least 22 jurisdictions in this country have held that the welfare of the child is a con- sideration superior to rights of adult litigants.4 In most of the cases cited in footnote 14 the courts have refused to uproot a youngster who has become established and is re- “ceiving good care in a home to return. him to his natural parent, even though the parent may be a fit person and not guilty of abandonment. Questions of abandonment .and ~ moral fitness. of the parent are frequently considered, but the ‘‘rights’’ of, the natural parent have not been per- 4 Armstrong v. Green, 260 Ala. 39, 68 So. 2d 834 (1953); Henry v. James, 222 Ark. 89, 257 S. W. 2d 285 (1963); Root:v. Allen, 151 Colo. 311, 377 P. 24 117 (1962); Baram Vv. Schwartz, 151 Conn. 315, 197 A. 2d 334 (1964), Bailey v. -Mars, 183 Conn. 593, 87 A. 2d 388 (1952) ; Hitecheock v.. Thomason, Mun. Ct. of Appeals for D. C., 148 A. 2d 458 (1958) ; Fielding v. High- smith, 152 Fla. 837, 13 So. 2d 208 (1943); Altimiller vy. Fors- man, 76 Idaho 521, 285 P. 2d 1064 ( 1965) ; Giacopelli.v—Klor- ence Crittenton Home, 16 TIl. 2d 556, 158 N. E- 2d 613 (1959) ; Hamilton v. Sourjohn, 332 Ill. App. ‘279, 75 N. E. 2d 42 (1947) ; Scott v. Asheroft, 342 Ill. App. 33, 95 N. E. 2d 122 (1950) ; Bobroff v. Levin, 350 Ill. App. 501, 133 N. E. 2d -177 (1953) ; Beach v. Leroy, 228 Ind. 122, 89 N. E: 2d 912 (1950) ; Brown * v. Beachler, 224 Ind. 477, 68 N. E. 2d 915 (1946); Glass v. Bailey, 233 Ind. 266, 118 N. E. 2d 800 (1954); Paul v. Peniston, 235 La. 579,°105 S. 24 298 (1958); Thumma v. Hartsook, 239: Md. 38, 210 A. 2d 151; Trenton v. Christ, 216 Md. 418, 140 _ A. 2d 660 (1958); In re Adoption of a’ Minor, 343. Mass. 292, 178 N. E. 2d 264; Farbés vy: Warren, 184 Miss. 526, 186 So. 325 (1939); Testerman v. Frederich, 323 S. W. 2¢ 522 (Kan. City 2d 370 (1954); MeKay v.Mitzel, 137 N. W. 2a 792 (N. D., 1965) ; Osburn v. Roberts, 197 Okla. 206, 169 P. 2d 293 ( 1946) ; Russell y. Russell, 208 Okla. 41, 253 P. 2d 136 (1953) ; Taylor . v. Taylor, 182 Okla. 11, 75 P. 24 1139 (1938); Long Vv. Me- . Inineh, 264 P. 2d.767 (Okla., 1953) ; Commonwealth v. Reed, 202 - Pa. S. 558, 198 A. 2d 344 (1964) ; Commonwealth vy. Powers, 206 Pa. S. 415, 212 A. 2d 929 (1965) ; Shamenek. y, Allen, 179 Pa. 8S. 169, 116 A. 2d 336 (1955); Smith v. Smith, 188 Tenn. 430, 220 S. W. 2d 627 (1949); King v. Shrum, 244 §, W. 24 720 (Tex. Civ. App., 1951); Trotter v. Pollan, 311 S. W. 24 723 (Tex. Civ. App., 1958); Stout v. Massie, 140 W. Va. 731 88 S. E. 2d 51 (1955) ; Morris v. Jackson, 66 Wyo"369, 319° P’ 2d 78 (1949). a shot aide tome eMcick ion Sa ie he Sheneh id aon arate ia. ? mitted to outweigh the child’s welfare.15> As noted by Pe- titioner at pp. 27-28 of his Petition, one state! has adopted the model statute proposed by the Section of Family Law of the American Bar Association, reading: | ‘Custody may be awarded to persons other than the father or mother whenever such award serves the ' best interests, of the child. Any _person sho has had de facto custody of the child in a stable and whole- some home and is a fit and proper person shall prima facie be entitled to an award of custody. fie | This child-oriented rule does not seek to reward nor punish the ‘adult litigants;!* thus the reason that the child was placed with the non-parent in the first place is never con- trolling. Madden, Persons and Domestic ‘Relations, Horn- - book Series (1931), at pp. 375-376, notes: ‘*Kven though the parent’s separation from the child was due to misfortune rather than to the parent’s In footnote 7 on P. 22 Petitioner urges that the substan- tial number of cases where parents become divorced, the parent . awarded custody later dies, and the surviving parent seeks cus- tody from a non-parent are distinguishable from the case at bar. They are not. The law is well settled in most jurisdic- tions that where the divorced parent having eustody dies, the “parental rights” automatically pass to: the surviving parent. And Appellee says “parental rights” are the only consideration in a parent-non-pdrent contest, absent unfitness of the parent | or abandonment. Why, then, should a court be permitted. to place the welfare of the child above “parental rights” in that - class of cases but be precluded from doing so in the ease at bar? In both types of cases there has been a dissolution of tthe family. Surely Petitioner is not arguing that in the One in- Stanee the court is punishing the living parent because he is — divorced, but in the case at bar the parent should be rewarded because he is not divorced. The only reasonable rationale is that these cases are decided from the standpoint of the child’s interests-rather than the interests of the adult litigants. 16 Hawaii Sess. Laws, Act 83, §1 (2), at p. 74 (1965). 17 ABA Section of Family Law, 1963 Proveedings, p: 38. 18 Carrere v. Prunty, 133 N. W. 2d 692 (Iowa, 1965). — Of “ a fault or .voluntary act, nevertheless, the*child may My have formed such new associations that a restoration 7 to its parents ‘would so greatly damage ‘its welfare “ss that it will be denied,”’ Other. legal scholars have recognized and approved the awarding of custody ‘to a non-parent in the absence of parental unfitness or abandonment if the child’s best in- terests demands it.!® In 67 C. J. S., Parent and Child, § 11, Pp. 635-636, it is stated: : ‘‘A parent’s right to the care, custody, and control of a-mingr child is merely a prima facie right, and, even though the parent is a fit and proper’ person, his or her right to such care, custody, and control is | not an. absolute right, even though there has been -no voluntary. abandonment of the right; and it may be invaded or entirely nullified.’ And 27 Am. Jur., Infants, § 108, p. 829, states:2¢ ‘Wherever a controversy arises between. different claimants. to the eustody of a child, the probable ‘wel- fare of the child is the controlling consideration to whith all questions of superior legal right are en- tirely subordinated. This test is applied in contests not only between the father.and mother of the child, . ~ ‘ but also between either or both of the parents and . strangers, or where neither ‘parent ‘of the child is ‘a - contestant.?’ There are many considerations in A case of this type in .. ° addition to parental fitness and abandonment. These in- “elude the length of time the child has lived with the third '® Peck, Domestic Relations ( 1930), pp. 371-372; Foster and: Freed, “Child Custody”, 39 -N. Y. Univ. L, Rev. 423; Comments -” . Of Harry M. Fain, 1963 Chairman of Committee on Child Cus- _ tody of the Section of Family Law appearing in ABA Section of Family Law, 1963 Proceedings; 15 A. L. R. 2d 432, 435, “0 See also 25.Am. Jur., Habeas Corpus, § 80; p. 205. aie s 3 person, the care he is receiving, the depth of his sifections, ties to. his present environment, the child’s wishes, the. child’ s associations with his natural parent, the effect‘a | - en | change of environment would have on the child’s physical ‘and mental health, the. marital status and sex of the parent, the amount of time the parent could spend with the child if awarded eustody, the care the parent could . give the child, and the permanancy of the parent’s home. If the rule Petitioner proposes were made mandatory, state courts,could consider none of the above matters, but . could consider only whether: ‘parental unfitness or abandon- | | ment ‘is shown. Courts which are so restricted have had to resort.to . legal fictions to cireumvent the restrictions.2 Then, too, there is the very real problem of trying to establish a . satisfactory definition of: ‘‘abandonment’’ and “unfit. i. a one case, the Supreme Court of Iowa relied - upon ‘financial abandonment”? in awarding custody to a non-parent??; it seems clear that it could have likewise ‘found Mr. Painter. to have ‘‘financially abandoned’? Mark _ had it chosen to'do-so. .The rule for which Petitioner argues (that parental rights are absolute absent abandon- | *ment or unfitness) also’‘results in a ‘‘tortuous wres-— tling’’2* with the. concept of ‘‘fitness’’, An apt example is the case of Clifford v. Woodford, 83 Ariz. 257, 320 P.. 2d 452, 454, where the Supreme Court of Arizona said: ’ “Tf the. surviving parent is shown to be unfit to assume such responsibilities in the sense that his custody would be detrimental to the best interest and welfare of such children then he is not éntitled . to their custody.’’ ( Emphasis added.) 21 See, on example, Laub v. Caltobelotta, 33 Mise. 2d 397: 219 N. Y. S. 2d 363. es 22 Carrere v. Prunty, 133 N. W. 2d 692, 695 (Iowa, thas), 23 Raymond v. Cotner, 175 Neb. 158, 120 N. W. 2d 892, 898. s° < 7 a a The Arizona Court then proceeded. to award custody. to , the non-parents because: it would be detrimental to the children to uproot them and place them with their. parent. A note in 89 A. L.-R. 2d 258, 264, states: ‘‘It may be observed that in such a connection the - word ‘unfit’ is: frequently treated as embracing mat- ters touching the welfare of the child apart from. or in addition to. any question of moral character, > The Supreme Court of Towa did, necessarily, find Mr. Painter ‘‘unfit’’ in the sense’ that the word is used in these authorities. No decision of the United States Supreme Court has set constitutional standards for child custody cases, save. the requirement of notice and opportunity to be heard.?4 It would ‘be wrong to elevate Petitioner’ s extreme posi- F . tion. to constitutional stature. These difficult cases are best handled locally, and the state courts must be left~ them. (d) In child pra cases» courts must wiiee the ways of life of the contestahts to enter an appropriate decree. But the Iowa court in this case considered such matters only from the standpoint of what this particular child needs, and the adjustments he would be required . to make if moved from one environment to. the other. ‘The fact that custody was awarded ‘to Respondents does ‘ not mean that their way of -life was found superior to Petitioner’s, except as related to ‘the ne needs of Mark. Penne complains of the characterization of him by . the court. The court said: 24 Armstrong v. ‘Manse, 380 U. S. 545, 85 S. Ct. 1187 (1965). In accord is: Stubbs v. ‘Hammond, 135 N. W. 2d 540 (Iowa, 1965). ; & ~ a a with sufficient discretion to fashion appropriate decrees in the widely varied factional situations coming | before c j nance *— 30.— “Tn the Painter home, Mark would have more free- dom of conduct and thought’ with opportunity to de- velop his individual talents. It would be more ex- _ eiting and challenging in many respects, but romantié, ‘impractical and unstable.’’ ” * * * * i ad “We believe it (life in the Painter household) ‘would be unstable, unconventional, ‘arty, Bohemian, — ‘ and probably intellectually stimulating.” . The words were used to describe, ‘not pass judgment upon. (“These matters are not related as a criticism of Mr. Painter’s conduct, way of life or sense of values. - An individual is free to choose his own values, within bounds, which are not exceeded here. ”) _ Petitioner does not complain that the words used are inaccurate. In large part they are -based upon his own _ description of himself as shown by the record in this case. The first paragraph above refers to Petitioner as being ‘‘romantic’’ and ‘‘impractical’’. ‘‘Romantic’’, ac- cording to Webster’s Third New International Dictionary, is a. synonym of ‘‘impractical”’. Exhibit 24, a letter ‘ written by Mr. Painter, states: ‘‘T think I very badly need a manager or a good business _agent, since I’m apt to be heady and, i im- ° practical.’’ The second, paragraph above refers to Petitioner as ‘‘un- stable, unconventional, rind Bohemian, and probably in- tellectually stimulating.’? Webster defines ‘‘Bohemian”’ as ‘‘one who reflects protest. against or ‘indifference to social .cornvention.’’ Exhibit 23 is a letter which. Mr. Painter wrote. in connection with his Washington Wni- versity employment: ‘‘T’m afraid academic institutions, or for that mat- ter, any organization large enough to go by the name _ of institution, do not set very well with my nature. -, A te. vo ae For one thing, their: purposes are never mine. My work here has been“i ‘in defiance of the established way 6f doing things. . . » As for Committees v. Painter, I either say nothing and inwardly chuckle at what I think: to be their folly, or say, nothing and do what I want to do, or say something pointed and do noth- ing. I sometimes wish I had a public personality— .with the guts of a Brooklyn Jew and the quick, devious logie of a Darrow—then maybe I could bend committees to my own ends. But my.thought process is geared to the written word, and I am always think- ing in sort of written rhetoric—a sort of meticu- lously designed rocket that will explode on contact when I am, at a distance, arming another... .”’ And ‘in ‘Exhibit 24 he wrote: oy detest, with a passion, commercial portraiture; every time I pass Hutchinsen’s Studio, I want to throw a rock through the window. °This is. more canned soup.”’ _ Surely Petitioner did not consider the descriptions de- ~. grading or insulting when he wrote them; why should © he assume that the-court used them in that: sense? In the same paragraph ‘in which the court used the words ‘unconventional’? and ‘‘Bohemian’’ to describe the Painter-household it also used the words ‘*intellectually stimulating.’? No fair-minded person could conclude that the Iowa court was opposed to intellectual stimulation. “In a child custody case ‘the court must, of. absolute necessity, consider the charact and. circumstances of the prospective custodians. It could not otherwise decree _ custody in the -best interest of the child. Perhaps, as _Respondent suggests, there are dangers i in this. But the danger would be much greater if the court failed to con- sider the character and emotional make-up of the con- ‘ testants and the child’s compatibility to each. ? ae Just because Mr. Painter was: denied custody, it does - not follow that the description of his character and cir- cumstaiices implied rank disapproval of him. Petitioner overlooks references to kim in the opinion which conld not possibly | be interpreted as ‘uncomplimentary: 1) He received an honorable discharge sii the ae 2) His marriage to Jeanne was, overall; a happy one. ! | 3) There is no suggestion in the record that he is *. morally unfit. 2 4) In the Painter home, Mark would have more | freedom.of conduct and thought with an opportunity to develop his individual talents. It would be more exciting and challenging in many respects. dD) The Painter household would probably be. intel- lectually stimulating. Many would think that a label of ‘‘conventional’’, such as the court used to describe the Bannisters, was hot com- plimentary (but nevertheless accurate when -eompared. to _____._.Painter). The point is, one misses the intent of the opin- _ion if in reading it he assumes that every word or phrase connotes an approval or disapproval of the character trait or value referred ‘to. | The obvious purpose of showing the divergent ways of: life of the Painters and the Bannisters was to demonstrate 1 the abrupt change to_ which Mark would be subjected if ———~ moved. Here is a child who, after a series of very trau- matic experiences, has settled into a pattern of life in ‘which he has found happiness. He is in his latency. period - of development, which is the very critical stage where he . is developing most of his concepts and attitudes about . himself and the world (R. 415, 429, 430). He has. spent ~ s on - inealt time since living . with. the ‘Bannisters in | determin. ‘ing who he is and where he fits into ‘his environment (R. - 430). He views Mr. Bannister .as/ his father figure and _ Mrs. Bannister as. his mother figure, and he sees a place " for himself in the Bannister family (R. 420). ‘He is doing. well in school and has- “many friends (R. 421). He has -come .a long way- in déveloping a concept of his role ‘in life (R. 430). Now the. Painters want. to take him to California, and for Mark this would mean starting all ‘ over again. -Dr. Hawkes felt the chance of success ‘was not good*(R. 430). u It was with this evidence before it that the court con- trasted the divergent ways of‘ life of: the Painters and. the- Bannisters. It was ‘to show the substantial adjust- ment ‘that Mark would have to make. If the situatiow were reversed (a move from the unconventional to the - conventional), the same ‘considerations would apply. The Towa Court said: * whee , c “Tt is not our prerogative > o determine euatoay _ upon our choice’ of one of twi ways of life within - _ hormal.and proper limits and we will not do so. How- ever, the philosophies. are important as they relate to Mark and his particular needs.” ( one added.) * * * * * * * “These matters are not related as a eiitialen of Mr. Painter’s conduct, . -way of life or sense of values. An individual is free to choose his own values, within bounds, whieli are not exceeded here. They do not serve, however, to support our cofclusion as to the kind of life Mark would be en to in the Painter household.” ar To deny a court the right to -view the i picture . before making a child custody award is to deny it- the ' right to make an award in the best interest of the. child. a The Federal Constitution does not impose such restrictions, , a er = an! ou 2, The’ Towa court remained neutral in ‘the matter of religion, and any consideration given to it was merely temporal, that is from the standpoint of the ‘adjustments which the child would have to make in changing from one religious environment to ae. _ Adequate state oe grounds support the decision. The decision makes, the followi ing ‘ references to ‘yeligion of the parties: — re . | >) “Mr. Bannister .. . regularly idan itoall School class at the Gilbert Community Church.” 2) “Mr. Painter is.either an agnostic or atheist and has no concern for formal religious training. He has read’ a lot of Zen Buddhism and ‘has been very ' much influenced by it’.” 3) “Mrs. Painter is Roman Catholic.” 4) “They (the Painters) plan to send Mark to a Congregational Church near the Catholic Church, n an irregular schedule.” 7 There ean gbe no doubt that a court may not constitu- tionally prefer one religious denomination over another in the sense that it believes one denomination or another - to be spiritually superior. No such: problem could present itself in this case, for Mark would be raised in the congre- _ gational Chureh regardless of who prevailed. It has tradi- tionally been thought that courts could, in ‘child custody <— cases, recognize the value of religious training of some | type for the child as opposed to no religious’ training.” But again, this question is not presented i in this case as the Painters would send Mark to a church and Sunday School as have the Bannisters. — It is clear that. the Supreme Court of Towa, if it gave . any weight at all to religious matters, did so only as ap- 25 66 A. L. R. 2d 1410, 1413-1416. ial @ ee plied to the boy’ s temporal welfare. ~The evidence would justify this in at least two respects. First, Mark was overly- -aggressive when he came to, Iowa, to the point of being cruel to other children and — . animals: The potential for such behavior is still very ° . much present.- Apart from the - theological aspects -in- volved, the court might well have concluded that this. boy _eeds moral: training such “as would be: available. in a. chureh, and that his regular Sunday School and church qittendance i in the Bannister home is desirable, | Seoond, Mark has since July ‘of 1963 attended Sunday School and’ church with one or both grandparents who have served as examples for him and who have been able to . support his religious development because of their own beliefs, _Before.Mark’s mother died, he had the advantage of a Congregational parent who could and did furnish him of a the same kind of support. If he were to go into the Painter home, -however, he would -be confronted with a confusing situation. He would be sent to a Congregational Church and would have nobody i in his home to share and strengthen the beliefs of that church, Mr. Painter being agnostic and Mrs. Painter being Roman Catholic. This i is: an unhealthy situdtion.for this particular child because *. of his need to identify and develop definite values. Dr. * Hawkes so testified; without objection: (Re 438). A closely- related problem is the change which Mark ‘would be sub- . jected to if moved—a change from parents. who are able to support his specific religious convictions ‘to parents wito.- are not,-and a change from regular Sunday School and church attendance to irregular attendance. 2 - Each of the above considerations are from the stand- point of Mark’s temporal welfare. Religion is incidental. . They are the same types of ciréumstances which, for the sake of the child’s mental health, would mitigate against a change from Catholic to Protestant custodians, Jewish: = > Aneel. nearest eascisstctaetis Malesitintsian Makita undiaitctiahtiieilnansi a ‘ anda —_ 36 —_— . Xx _— | to Catholic, non- Christian to Christian, ete. Such consid- .- erations do not remove the state’ from. a neutral position - on religious. matters so long as a particular belief. is not preferred because of what ‘is thought to be its intrinsic value.’ : ; Much of oii ‘wri ; said in 1 (a) is applicable: to com- ‘plaints relating -to religion. It is clear that the: court’s” ‘reference to religion was in- cidental. The decision rests upon adequate state grounds, and thus is not’ reviewable by the. United States Supreme Court. Durley v. Mayo, 351 U. S. 277; Dixon, v. Duffy, 342 U. 8. 33; Young v. Ragen, 337 U.S. 235. In the cases ek cited by Petitioner on p. 33, the complaining parties were’ © penalized for their. religious beliefs... No such situation =e exists here. 3. The decision of the Iowa court was ‘based. upon 7. stantial evidence. Sac el - Finally, Petitioner ‘urges that the decision below rests upon no evidence at all, and thus constitutes a denial of - due ptocess. The weight to be accorded the evidence is fer the Iowa courts to determine. Dr:-Hawkes is a highly competent and respected child psychologist. Three teachers \ and a minister also testified .to the harmful effect they thought a move would have on Mark. Petitioner had a full opportunity to present evidence in this regard, but was cither unable to obtain it or’chose not to do s6 for some other reason. The Supreme Court of Iowa decided’ this, case on the basis of the substantial evidence before it RESPONSE TO AMICUS CURIAE BRIEFS. Petitions. to ‘file-amicus curiae briefs on. behalf. of. sits iy tioner, with briefs. attached, have beén filed by (1) The , American Civil — pinion and The Iowa, “we Lib- | ‘ ae NG one Rae’, - erties Uuiou; and (2) eed of: Christian Social Cundenied: New York Annual Conference of the Methodist Church; A ) aot The State of California has also filed a brief. : Respondents resist the respective petitions to file briefs, _ but make the following response in Paes event the petitions ‘are granted: *(1) The brief’ of the pon ven and lowa Civil Liberties ~ Union advances the same arguments as the principal’ petition, and we adopt our Brief in Opposition as our. response -here. _We confess surprise at the brief of the American Civil: Liberties Union in view. of its earlier action in this case. When considering on February 28, 1966, whether to file an amicis curiae brief.in the Supreme | Court. of Iowa in support of the Petition for Rehearing, ‘the Board of Directors of: the American , Civil Liberties _ | Union voted not to file sch a brief on the ground ‘*that ‘the Union does not -believe that there is a. civil: liberties issue to justify our intervention, howevermuch we dislike | “the language: of the decision, and that we advise: the » Town Civil Liberties: Union of our position. -. (2) In response to the brief of the Board of Christian ae * Social Concerns, New York Annual Conference of the | & : Methgdist Church,’ we adopt our _ Brtet in Opposition to . Petitioner’s petition: ° © (3) ‘The: ‘brief of the State of California ° raises an issue 4 not raised -by Petitioner, to-wit, that the law of California +: | _ should have been applied by the Supreme’ Court of Iowa. "We do not feel justified in responding at length to a mat- ° ter not evén involved in the petition, except to note that no federal’ question is raised -in ‘this respect and that ‘Pe- titioner did not plead or prove California law i in this case 26 Minutes’ ‘of Beard of Directors of the per Civil ‘Lib- erties Union of February 28, 1966. Reference to these minutes is made in footnote 31 of the comment on this case in .79 Har- : yard L. Rev. 1710, 1715. ’ -4& ——— i oan as required by Iowa law, In re Estate of Drumheller, 252 *” Towa 1378, 110 N.. W. 2d 833, nor did he ask the Supreme Court of Iewa to apply California law at the time the case was originally submitted on appeal. Further, the law ' ” of the forum where a custody issue is raised for determina- tion, rather than the law of the domicile of the child, \\ determines custody matters. 27 ’ CONCLUSION. The writ of certiorari should be Genied. eae ? ree submitted, JOHN L. BUTLER, SACK A. HALL, | . Eldora, lowa 50627, — for Respondents. _— Of Oounael LUNDY, BUTLER, WILSON HL HALL, Eldora, Iowa 50627. October, 1966. . P . 27 15 ©. J. 8., Conflict of Laws, § 14 (d), p. 911; 67 C. J. 8, Parent and. Child, § 4, p. 630; Goodrich, Conflict of Laws, Sec. tion: 136, p. 272. | --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385602_1789%3A6. Public record. Not legal advice.