Barr v. Barr

DOOLING, J.

Appellant, hereinafter called the mother, appeals from an order modifying her final decree of divorce from respondent, hereinafter called the father. In the original decree the mother was awarded the custody of the parties’ only son. By the order appealed from, the father is awarded custody with rights of visitation in the mother. Both parents have remarried and at the time of the hearing the boy was 8 years of age.

The sole complaint on appeal is that the trial judge prejudged the issue and by reason thereof appellant was prevented from having a fair trial.

The motion for change of custody was presented to the trial court upon conflicting affidavits, the report of a domestic relations investigator for the court, oral testimony and an interview by the judge with the boy in his chambers.

At the time the oral hearing commenced the judge had

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before Mm the investigator’s report. At the outset of the hearing counsel for the father suggested that he would like to present the evidence of the father and his present wife to supplement matters in the investigator’s report which the investigator “could not have observed.”

The judge, addressing himself to this statement of the father’s attorney, asked him in what way he felt the report to be incorrect or not complete, saying: “You couldn’t make a better showing than she has made for you, and I am in accord with it, in agreement with it. . . . My own thought is that in all cases of this type, that a boy is much better off with his father, assuming he is a fit and proper person, as in this case is very clearly indicated than he would be with his mother. A boy, in my opinion should be with the father rather than the mother because I have found in a great many instances that they are inclined to become tied to their mother’s apron strings to a point where it isn’t for the best interests of the boy. So there isn’t any showing that you can make here that is going to satisfy me any more than I am now satisfied that this man and his present wife have a wonderful home for him, and are fit and proper people to have him. ’ ’

This statement was addressed to the offer of additional proof by the