149 Minn. 192 | Minn. | 1921
Plaintiff and defendant were married in August, 1915. A son was bom to them in May, 1916'. In September, 1918, plaintiff commenced this action for divorce aleging cruel and inhuman treatment. Th6 trial court denied plaintiff -a divorce, and decreed that, during the continuance of the estrangement, plaintiff should have the custody of the child from November 1 until May 1 following, each year, and that defendant should have his custody from May 1 to November 1.
Counsel for defendant take exception to a statement in the findings that the evidence is not sufficient to constitute cruel and inhuman treatment “within the meaning and intent of the approved rules of this jurisdiction.” We take this to mean the “jurisdiction” of the state of Minnesota, and not, as counsel understand it, of the judicial district in which the case was tried.
We are of the opinion that the interest of the child will not be best served by the divided custody ordered by the trial court and that custody should be awarded to one or the other parent. If he cannot have the daily care and guidance of both father and mother, we'are of the opinion that, to a boy five years old, the mother’s care is most indispensable. Yet the father should be afforded most liberal opportunity of seeing and visiting his child and of talcing him out at all reasonable times. The judgment of the trial court will be modified so as to award the custody of the child to plaintiff, under such regulations for visiting and association on the part of the father, and with such allowance for support, as the trial court may order.
Judgment modified.