This habeas corpus proceeding involves a contest between the mother and the father of an illegitimate girl fifteen years of age who has never been legitimated by her father under the provisions of Code § 74-103. On the hearing and after both parties had introduced their evidence, the court awarded custody of the child to its mother and the respondent father excepted to that judgment. Held:
1. “The mother of an illegitimate child shall be entitled to the possession of the child, unless the father shall legitimate him
*175
as before
[Code
§ 74-103] provided. Being the only recognized parent, she may exercise all the paternal power.”
Code
§ 74-203. See
Perry v. State,
2. In the instant case there is no contention that the plaintiff mother is an unfit person to have custody and control of her illegitimate child, and the respondent father, who has not legitimated his child, predicates his right to retain custody and control of her solely on the ground that the mother had by voluntary contract released her to him and consented for him to have permanent custody and control of her on his agreement to support and educate her. On the trial the father testified positively that 'his custody of the child was in virtue of such contract and the mother testified positively that she had not released her right of parental control to the respondent father by contract or otherwise and that he had taken possession of the child without her consent and against her will. The judge, as the exclusive trior of that issue of fact, found in favor of the mother’s contention and this court will not interfere with his decision on that issue when there is, as here, any evidence to support his finding.
Reece v.
State,
Judgment affirmed.