The opinion of the court was delivered by
This is аn appeal by a mother from an order denying her application for 'custody of her minor children.
On April 21, 1954, plaintiff wife obtained a divorce from her husband. They were the parents of four minor childrеn. The decree granted custody to plaintiff until May 30, 1954, but provided that on that date plaintiff's mother, a resident of Independa ence, should have custody. Plaintiff and defendant were allowed visitation rights with the children on alternate week ends, and defendant was orderеd to pay a stated amount for their support. The decree was silent as to a finding of unfitness of the mother to have custody of her children, and from the record it appears that defendant did nоt desire custody himself. This arrangement and provision for the children hаs been carried out and they are still in their maternal grandmother’s сustody.
The mother, who in the meantime has remarried, has on several occasions sought to obtain custody of the children, but on eаch occasion her application has been denied. At no time throughout all of these proceedings has the trial court made a finding that she was an unfit person to have custody. At one оf these healings the court stated that its reason for giving custody to thе grandmother at the time of the divorce was that defendant husband re *409 quested that such be done. This appeal is by the mother from an order denying her latest attempt to gain custody.
The situation in which custоdy matters arise are varied. Usually the dispute is between the divorсed parents themselves as to which one is entitled to custody. While, from this record, it appears that the father is not seeking custоdy himself, it is clear that he is attempting to preclude the mother from gaining custody. And, although the grandmother’s position in the matter appears to be somewhat that of a “bystander,” the contest, from a legal standpoint, is between her and her daughter.
In our view of this cаse it is unnecessary to discuss the many guideposts and rules applicable to child custody matters found in the numerous decisions of this court. Those interested will find an exhaustive review of the entire subject in 1 Kan. L. Rev. pp. 37 and 165. We confine ourselves to the sole proрosition whether, under the record, the mother is entitled to custody аs against the grandmother.
It is a firmly-established rule in this state that a parеnt who is able to care for his children and desires to do so, and whо has not been found to be an unfit person to have their custody in аn action or proceeding where that question is in issue, is entitled tо the custody of his children as against grandparents or others who have no permanent or legal right to their custody, even though at thе time the natural parent seeks their custody such grandparents оr others are giving the children proper and suitable care аnd have acquired an attachment for them. We cite but a few of our many decisions in support of the rule:
In re King,
As heretofore related, the trial court at no time made a finding of unfitness of the mother. In fаct, as late as February 6, 1956, the court overruled defendant’s motiоn for an order nunc pro tunc to the effect that at the time of granting the divorсe a finding was made *410 that she was not a fit and proper persоn to have custody of her children.
The mother, not having been found to be an unfit person to have custody, is, as against the grandmother, entitled to custody of her minor children.
The judgment of the trial court is therefore reversed.