Baker v. Durham
129 S.W. 789
Ark.
1910
Check Treatment
Wood, J.,

(after stating the facts). “By statute, as well as by common law, the father (unless incompetent or unfit) is ■the natural guardian, and entitled to the custody, care and education of his minor children.” Boles v. Dickson, 32 Ark. 96; sec. 3757, Kirby’s Digest; 21 Enc. Law, 1036, 1037.

In Verser v. Ford, 37 Ark. 30, this court, through Judge Eakin, said: “Any system of jurisprudence which would enable the courts in their discretion, and with a view solely to fhe child’s best interests, to take from him that right, and interfere with those duties, would be intolerably tyrannical, as well as utopian.” Even as between the father and the mother, the custody in the father is generally allowed unless the child, on account of tender years, or being a female, imperatively requires, for its -well being, that' attention which a mother’s love and care alone can supply. But, as between the parent and grandparent, or any one else, the law prefers the former unless the parent is incompetent or unfit, because of his or her poverty or depravity, to provide the physical comforts and moral training essential to the life and well being of the child. It must be an exceptional case where the evidence shows such lack of financial ability or such delinquencies in character oh the part of fhe father as to imperil the present and future welfare of ms cmkt before a court of chancery will deprive him of the duty and the privilege of maintaining and educating his child, and of the pleasure of its companionship. See Wofford v. Clark, 82 Ark. 461.

There -may be other exceptional cases where the father, by reason of indifference to the welfare of his child and the lack of proper affection for it, has voluntarily relinquished these parental obligations, privileges and pleasures to other hands for so long that the court will refuse to disturb the associations and environments which his own conduct has produced, and will leave in statu quo those whom he has thus permitted to stand in loco parentis. Coulter v. Sypert, 78 Ark. 193.

But the evidence in this case fails to discover any of these exceptional cases. As was said by us in Wofford v. Clark, supra: “While great weight should be given to the decree of the chancellor, where he sees the parties and is more cognizant of the local surroundings than this court, we are nevertheless of the opinion that the decided preponderance of the evidence shows that his decree is erroneous.” For here the father has all along manifested an affection for his child and a desire to have its custody. When the decree of divorce was obtained, the court doubtless correctly awarded the temporary custody of the child, because it was a female and of tender years, to its mother. But when the mother married again and left the child in the hands of her grandparents, and left the county, as the evidence tends'to show, the appellant was warranted in making application for the custody of his child. The court.had not awarded the child to her grandparents, but to her mother; and, as between them and the father, the latter shows the better right. He shows that he was financially able to provide for his child. There is no showing in the record that he is incompetent or unfit to discharge the duties which the law enjoins upon him as the natural guardian of his daughter. Since the court has seen proper to take the custody of the child from the mother, we áre of the opinion that under the evidence adduced it should have next bestowed it, at his request, upon the father. The grandfather, for aught that appears, was not asking it, and there is no evidence to show that he was better able, financially or otherwise, to provide for the child. Nor does the evidence show that these grandparents were lavishing such wealth of attention and affection upon this child as to render it inhuman, either to them or the child, to take her away from them and give her to her father.

The decree is therefore reversed, and the cause is remanded with directions to enter a decree awarding the custody of the child to the appellant.