Bobo v. Christian

25 So. 2d 325, 199 Miss. 433, 1946 Miss. LEXIS 214

• Court: Mississippi Supreme Court
• Decided: March 25, 1946
• Docket: No. 36078.
• Status: Published

Opinion

Alexander, J.,

delivered the opinion of the court.

Appellant filed in the chancery court what is styled a petition for the permanent care and custody of a minor child. It asserts that he has been divorced by his wife, and that their child, seven years of age, is in his custody •and being properly cared for. His former wife has again married and lives in Alabama. Although duly summoned as a defendant in this proceeding, she did not appear or file answer.

The prayer of the petition is that petitioner “be granted the decree of the court vesting' in him the permanent care and custody of the child.” The chancellor declined to assume jurisdiction, and the appeal is from a decree dismissing the petition.

It is at once seen that petitioner is asking the Court in effect merely to confirm an existing status and, as it were, remove any clouds that exist or may hover over his right to retain custody of his child. The proceeding is not adversary but advisory. There is no allegation that his right and duty to care for and maintain his child is ques- turned by word or deed. A purely declaratory decree is unknown to our practice. Petitioner’s purpose is not to assail an adverse claim, but to assuage a groundless anxiety. There are, of course, procedures available in custody cases of an adversary nature. The situation here, however, falls under none of these.

Affirmed.