The opinion of the court was delivered by
This was a divorce action wherein both appellant father and appellee mother prayed fоr divorce and custody of their four minor children, whose ages are now approximately two, four, five and six years. The trial court after hearing the testimony offered at the trial made findings of fact and conclusions of law granting appellant father a divorce by reason of the fault of his wife, and finding that neither appellant nor appellee was a fit and proper person to have the custody of the minor children and granting thе custody to the adoptive maternal grandparents.
No post-trial motions were filed by appelleе. Appellant filed a motion to vacate and set aside certain findings of fact and con *381 elusions of lаw made by the trial court and to adopt appellant’s suggested findings and conclusions of law, and a motion for a new trial, which were overruled. Appellant in this appeal charges error in the court’s action in оverruling his motions above referred to.
The principal question involved in this appeal is whether the court abused its discretion in finding from the evidence adduced that appellant was unfit to have the custody of his children аnd in granting that custody to the adoptive maternal grandparents.
At the outset, it may be stated that under our recеnt and often repeated decisions to which we have strictly adhered for many years, the established and inviolate rule has been and now is that a parent who is able to care for his children, who desires to do so, аnd who has not been found to be an unfit person to have the custody in an action or proceeding where that question is in issue, is entitled to the custody of his children as against grandparents or others who have no permanent or legal right to their custody, even though at the time the natural parent asks the custody, such grandparents оr others are giving the children proper and suitable care and have acquired an attachment for thеm.
(Stout v. Stout,
That brings us to the single question in this case. Was there any substantial evidence to justify the trial court’s finding that the father was an unfit person to have the custody of his children and to support the award of their custody to the grandparеnts? The finding of the lower court that the mother (appellee) was unfit to have custody is not before us, as aрpellee neither appeared in the court below, nor makes any appeal from rulings there mаde.
Appellant argues that there was no substantial evidence in the record to indicate that he was an unfit person to have the custody of his children. We have carefully reviewed the evidence, and while some of the members of this court might have reached a contrary conclusion to that of the lower court, we are unable to say there was no evidence to sustain the trial court’s judgment.
It has been the rule of this court that the findings and judgment of a trial court on an issue of fact supported by substantial though controversial evidence will not be disturbed on appeal.
(Crews v. Sheldon,
*382
In divorce actions of this kind the right of either parent to the custody and control of the minor children must be given secondary consideration to that of promoting the general welfare of such children. For good cause shown, the trial court may dеprive both parents of the custody and control of their minor children and award the custody and control to another in conformity with the best interest of the children.
(Collins v. Collins,
The trial court had before it the father, the children, and the grandparents, both maternal and patеrnal; and we must assume that in determining what was for the present best interests of the children, the court considered the father’s present facilities and ability to care for the four children of such tender years; considered which of the grandparents were presently better able to care and provide for the children, financiаlly and otherwise; and considered the ready accessibility of both church and school, and other matters, in arriving at its conclusion that the interests of the children would be best served by awarding their custody to the maternal grandparents instead of to their father who also asked custody, no evidence appearing in the record of his moral unfitness to have that custody and control. Under such circumstances the correct determinatiоn of the controversy rested in the discretion of the trial court.
In view of the evidence and what has been sаid above, we cannot say that the trial court abused its sound judicial discretion in awarding the present custody аnd control of the children to the maternal grandparents so long as such grandparents are willing to and do keep the children in their own home and personal custody, with parents’ rights of visitation as decreed by the trial court.
Appellant’s future right to the custody оf his children has not been foreclosed. Jurisdiction of the district court over the minor children in a divorce action is a continuing jurisdiction (G. S. 1949, 60-1510;
Janney v. Janney,
The judgment of the lower court is affirmed.