Correspondence from Lani Guinier to James U. Blacksher

    No. 17,180

IN  THE

H I D  STATES COURT OE APPEALS
FOR THE SIXTH CIRCUIT

M ICHAEL EILERS, THOMAS EILERS, DAVID  
EILERS, GEORGEANNE EILERS and FRAN- 
CINE EILERS, by AN N A FRANCES (E IL ­
ERS) ANDERSON, Their Mother and Next 
Friend, - - - - -  Petitioners-Appellants,

versus

LONNIE C. CARPENTER, in His Capacity as 
Executive Director of the Louisville and Jeffer­
son County Children’s Home, - Respondent-Appellee, 

GEORGE F. EILERS, - - Intervening Petitioner.

BRIEF FOR INTERVENING PETITIONER, 
GEORGE F. EILERS, FATHER.

NICHOLSON & HUBBS,
602 Kentucky Home Life Building, 
Louisville, Kentucky 40202

Attorneys for Intervening 
Petitioner.

W E S T E R F 1 E L D -B O N T E  C O .,  IN C O R P O R A T E D , L O U IS V IL L E , K Y .



TABLE OF OASES.

PAGE
Beall v. Bibb, 19 App. D. C. 311..................................  4
Boone v. Boone, 150 F. 2d 153, 80 IT. S. App. D. C. 152. 4
Church v. Church, 270 Fed. 359.................................. . 5
Dake v. Timmons, Ky., 283 S. W. 2d 378..................... 5
Evans v. Brown, Ky., 259 S. W. 2d 62........................... 5
Ex Parte Haivk, 321 U. S. 114...................................... 6
Holtclaw v. Mercer, 145 F. 2d 388, 79 U. S. App. D. C.

252 .................................................................    4
Lowery v. Fayette County Children’s Bureau, Ky., 209

S. W. 2d 487............................................................  6
May v. Anderson, 345 U. S. 528, 73 S. Ct. 840, 91 L. Ed.

1221 ............ ........................................................................... 6
Merriman v. Selvey, Ivy., 296 S. W. 2d 716..................  5
Stickel v. Btickel, 18 App. 13. C. 149............................. 5
Tuelee v. House, 110 Fed. 2d 797.   ........................... 6
Wright v. Johnson, 74 Fed. Sup. 25..............................  5



IN  THE

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT 

No. 17,186

M ichael E ilers, T homas F ilers, D a v i d  
E ilers, George anne E ilers and F ran- 
cine E ilers, by A nna F rances (E il­
ers) A nderson, Their Mother and Next 
Friend, - Petitioners-Appellants,

v.

L onnie C. Carpenter, in His Capacity 
as Executive Director of the Louis­
ville and Jefferson County Children’s 
Home, - Respondent-Appellee,

George F. E ilers, - - Intervening Petitioner.

BRIEF FOR INTERVENING PETITIONER, 
GEORGE F. EILERS, FATHER.

Mrs. Anna Frances Eilers Anderson was granted a 
divorce from George F. Eilers on June 14, 1963 in the 
Jefferson Circuit Court, Louisville, Kentucky. As a 
result of this marriage union, there were horn five 
infant children and Mrs. Anderson was given custody 
in the court decree. The Eilers are white persons.



2

In January of 1964, Mrs. Anderson married 
Marshall Anderson, a Negro, in the State of Illinois. 
Everything apparently went well except that Mr. 
Anderson was given the task of disciplining the chil­
dren, according to their testimony in Juvenile Court 
and in Circuit Court.

The Jefferson County Juvenile Court received in­
formation in March of 1964 that at least the two older 
children, Georgeanne and Michael, were severely beaten 
by Mr. Anderson. On its own volition, the Juvenile 
Court instituted proceedings by warrant against Mr. 
Anderson and after a full hearing, the Court awarded 
Mr. Eilers the temporary custody of the two children. 
Mr. Anderson did not deny the charges. Mr. Eilers 
petitioned the Circuit Court for relief in behalf of the 
children and after a full trial, the Court entered Judg- 
ment on September 29, 1964, placing said children in 
a neutral environment. The record in Juvenile Court 
was also made a part of the testimony in the Circuit 
Court. It was found that all of the children of school 
age, with one exception, were failing in school and, 
according to teachers and Juvenile Court investigators, 
were having severe psychological problems.

The decision of September 29, 1964 was attempted 
to be appealed to the Kentucky Court of Appeals but 
was later dismissed because the Notice of Appeal was 
not filed timely. During this time, Mrs. Anderson filed 
a Supplemental Complaint alleging a change of cir­
cumstances and asking for the custody of her children. 
She did not ask for a day to be heard. On February 17,



3

1966, Mr. George F. Eilers also filed a Supplemental 
Complaint alleging a change of circumstances and seek­
ing custody of the children. He requested a hearing 
date and the case was set for a hearing on April 13, 
1966.

Then Mrs. Anderson began filing Writs of Habeas 
Corpus; one in the State Court, one in the Federal 
Court. On the 25th day of March, 1966, Federal Judge 
Henry L. Brooks denied the Application for a Writ 
of Habeas Corpus on the ground set out in the Judg­
ment filed in the record.

The entire motion for modification of the Judgment 
by both parties was heard in the Jefferson County Cir­
cuit Court on April 13, 1966 and May 4, 1966. At this 
writing, the case is under submission pending the 
transcribing of the testimony. (It  may be well to note 
here that the children who testified, namely, the three 
older children, stated in open court that they desired 
to live with their father.)

It is also imperative to realize that the original 
Judgment handed down by the Jefferson Circuit Court 
on September 29, 1964, stated that no consideration 
would be given to the validity or invalidity of the 
marriage between Mr. and Mrs. Anderson. The Judge 
emphatically stated that its ruling would only con­
sider the best interests of the children.



4

ARGUMENT,

It is ironical that in all of the briefs filed by Appel­
lants, at no place do they mention anything about the 
best interests and welfare of the children. They are 
apparently being used as pawns to facilitate an alleged 
question that has no real bearing in this action. 
Whether this marriage was valid or invalid is not the 
question. The fact remains that it resulted in a con­
dition which sorely affected the best interests and wel­
fare of these children. That is the only question 
involved and the Courts have repeatedly held that this 
can best be decided in state courts.

On Habeas Corpus for the custody of a child, the 
interests of the child is the paramount consideration 
in determining who is best entitled to its custody. 
Stickel v. S U M ,  18 App. D. C. 149; Beall v. Bibb, 
19 App. D. C. 311.

In determining custody, the question for the Court 
is the welfare of the children which overrides all other 
considerations, even where the proceeding is in Habeas 
Corpus, and the rights of the parents must yield to the 
interests and welfare of the children. Boone v. Boone, 
150 F. 2d 153, 90 U. S. App. D. C. 152.

In Habeas Corpus proceeding by parent to obtain 
custody of child, what is best for the child rather than 
the natural right of the parent, is the controlling factor. 
Holtclaw v. Mercer, 145 F. 2d 388, 78 H. S. App. 
I). C. 252.

This "was not a Motion or IVrit for the immediate 
possession or control of the children in violation of a



5

Court Order. Petitioners admitted in Paragraph One 
(1) of their Complaint that the children are under the 
custody and control of the Executive Director of the 
Louisville and Jefferson County Children’s Home pur­
suant to an Order of Court and, therefore, a W rit of 
Habeas Corpus is not the proper remedy. Church v. 
Church, 270 Fed. 359; Wright v. Johnson, 74 Fed. 
Sup. 25.

A  Habeas Corpus proceeding, in so far as minor 
children are concerned, is proper when it involves right 
of particular persons to have immediate possession or 
control of a child, but such proceeding is not a proper 
method for modifying the original award of the chil­
dren to the extent that the Court might make a deter­
mination as to the ultimate custody of the child. The 
proper approach to such an end is through a court of 
proper venue having jurisdiction of the parties and 
subject matter. Bake v. Timmons, Ivy., 283 S. W. 2d 
378. Habeas Corpus proceeding is not proper to deter­
mine permanent custody of a child. Merriman v. 
Selvey, Ky., 296 S. W . 2d 716.

Where ultimate custody of children has previously 
been adjudicated, issue may be re-opened only in a 
court of equity, although Habeas Corpus is a proper 
proceeding to determine immediate and temporary 
right to possession of children. Evans v. Brown, Ky., 
259 S. W. 2d 62. Habeas Corpus proceeding for deter­
mining the right and custody of children partake of 
incidents of a suit in equity and should be considered 
to be one in rem, the children being the res, and the 
issue extends far beyond that presented in the ordi­



6

nary Habeas Corpus proceeding. Lowery v. Fayette 
County Children’s Bureau, Ky., 209 S. W. 2d 487.

Under Oliio procedure, a W rit of Habeas Corpus 
attacking tbe right of a mother to retain possession of 
her minor children in view of a divorce decree award­
ing custody to their father, tested only the immediate 
right to possession of the children and did not open 
the door for a modification of prior award of custody 
on showing of a change in circumstances and was not 
available as procedure for settling the future custody 
of the children. May v. Anderson, 345 U. S. 528, 73 
S. Ct. 840, 98 L. Ed. 1221.

This case is pending in the .Jefferson Circuit Court, 
Louisville, Kentucky. A full trial was held on alleged 
change of circumstances. The petitioners have not ex­
hausted their State remedies as required by law. 
Ex Parte Hawk, 321 U. S. 114. Furthermore, the 
W rit of Habeas Corpus filed in the State Court has 
been appealed to the Court of Appeals of Kentucky, 
and the petitioner cannot anticipate an adverse ruling 
by the State Court. Tuelee v. House, 110 Fed. 2d 797.

SUMMARY.

This case is presently before the State Court in 
Jefferson County, Kentucky. The only question being 
resolved is what is best for the children under the 
circumstances. "We do not believe that the petitioner 
has a right to hide behind the skirts of her alleged 
constitutional rights at the expense of the welfare and 
best interests of the children.



7

I f  Petitioner does have some kind of constitutional 
rights, then the children have a constitutional right 
not to be raised in an environment already proven to be 
detrimental to their best interests.

There is no Federal question involved and the State 
Courts are much better equipped to resolve the knotty 
problems in child custody cases.

Respectfully submitted,

\ ' m h o i.s<>\ & H ubbs,
602 Kentucky Home Life Building, 
Louisville, Kentucky 40202,

Attorneys for Intervening 
Petitioner.