delivered the opinion of the court.
Plaintiff brought this action in October, 1935, to obtain a decree awarding to her the custody and control of Marion Fill *66 ner, a minor daughter of defendant, then of the age of seven years.
In general, the complaint alleged that defendant had placed the child in the custody of plaintiff! in July, 1932, pursuant to an agreement that plaintiff should have the exclusive control and custody of the child, the mother of the child being then deceased; that pursuant to the agreement plaintiff had ever since then clothed, fed, maintained and educated the child in her home, and that the best interests of the child would be subserved by permitting her to remain in the custody of plaintiff. Defendant, by answer, put in issue most of the material allegations of the complaint, and likewise asked the court to assume jurisdiction over the person of Marion Fillner as a court of equity and award the custody to him. The trial took place in December, 1936, resulting in a decree awarding the custody to plaintiff, with the right of visitation in defendant at reasonable times.
Defendant has appеaled from the judgment. The gist of his contention is that neither the complaint nor the evidence, viewed in the light most favorable to plaintiff, warrants the judgment appealed from. Specifically he contends that the complaint does not make out a cause for awarding the custody of the child to plaintiff, and that the evidence falls short in the same respects as does the complaint. No contention is made that the evidence goes beyond the allegations of the complaint; hence we shаll but consider the sufficiency of the evidence to support the judgment. The sufficiency of the evidence automatically determines the sufficiency of the complaint, for the attack upon each is based upon the same ground.
The court made the following findings of fact:
“I. That the wife of the defendant, George W. Fillner, died on or about the 15th day of January, 1929, leaving the defendant and two children, Russell, age about three years, and Marion, age about eleven months, surviving her; that shortly thereafter the defendant arranged with a sister of the deceased wifе at Mandan, North Dakota, to care for said children, and that said sister did care for them until on or about the 9th day of Decern *67 ber, 1930, at which time both children were brought to Forsyth, Montana, and turned over to the plaintiff under an agreement that the plaintiff was to care for them for a trial period at the compensation of $50 per month, and later the plaintiff and defendant were to make other arrangements if advisable. The court further finds that the defendant was dissatisfied with the care given to the children by the sister at Mandan, and the relations between the sister and the defendant were discordant at the time he took the children from her and brought them to Forsyth, Montana.
“II. That in early May, 1931, the defendant took the boy Bussell with him to Wisconsin, and later to Mississippi, where he had established relations with another relative, a brother-in-law ; that in July, 1931, the defendant returned from Mississippi to Forsyth, Montana, and informed the plaintiff that he wanted to take Marion with him to join Bussell and himself in Mississippi, and asked her opinion in relation to taking Marion; that the plaintiff, while having become much attached to Marion and though reluctant to break the attachment, informed the defendant that if the two children could be together with him in a home, she did not wish to obstruct that end, and told him to take Marion; that the defendant thereupon did take Marion to Mississippi, and thereafter, in the spring of 1932, the husband of the plaintiff, F. F. Haynes, wrote to the defendant at Waynesboro, Mississippi, and informed him that the plaintiff was going to Des Moines, Iowa, on a visit and asked about arranging a visit with Marion; that as a result of correspondеnce between the parties, the defendant wrote said F. F. Haynes that there had been difficulty between the defendant and the brother-in-law, a Mr. Speegs, and his wife, and that Marion could return to Montana, and advised said Haynes in said letter, ‘I guess Marion is with you to stay’; and the defendant in the same letter requested Mr. Haynes to try and find a suitable home for the boy Bussell; that in a telephone conversation with the plaintiff at Des Moines, Iowa, shortly thereafter, the defendant told Mrs. Haynes, the plaintiff herein, that he was turning Marion over to her for keeps; that shortly thereafter *68 the plaintiff went to Springfield, Illinois, and got Marion, and at that time it was definitely understood between plaintiff and defendant that the plaintiff would not again take Marion on a temporary basis, but would take her permanently to rear and educate without expense of any nature to the defendant; that such was the agreement and understanding and became, by the conduct of the parties, an executed oral agreement amply substantiated by the evidence, the terms of which were that the plaintiff received the child Marion from the defendant with the definite understanding and agreement that the plaintiff would take the sole custody and control of the child and that the defendant would relinquish same to her; that under the terms of said agreement, the plaintiff returned the child to her home at Forsyth, Montana, and ever since said time has cared for said child in a fitting and proper manner without any expense whatsoever to the defendant; that after taking said child at Springfield, Illinois, by the plaintiff in July, 1932, and up to the рresent time, the defendant at no time ever offered in any way to contribute to the support of Marion or at any time ever manifested any attitude other than in support of the said agreement, until about the month of October, 1935, at which time the defendant visited the office of F. F. Haynes and informed him that he had just discovered that Marion had been registered in the school as ‘Marion Haynes,’ and demanded that said Haynes sign a paper that Marion was only temporarily in the custody of Mrs. Haynes, the plaintiff herein; that from Jаnuary until May, 1935, the defendant was out of employment in his capacity as a railroad fireman,.and during this period of time lived at the Haynes home, and that while there, the school card of Marion was officially made out in the name of ‘Marion Haynes,’ and that the boy, who had been living in the Haynes home since June of 1934 continuously up to October, 1935, was registered as ‘Russell Fillner’; that the defendant had full knowledge at all of those times of the fact that Marion was registered as ‘Marion Haynes,’ and made no objection or protest of any nature at any time until the visit to the office of said Haynes; that the court further finds that the said child is now registered *69 in the schools as ‘Marion Fillner,’ and that it is agreeable to the plaintiff that she retain said name.
“III. That the defendant returned his boy Russell to Montana in the latter part of June, 1933, and brought him to the Haynes home where he lived with his sister until September, 1933, at which time a brother of the defendant from Casper, Wyoming, came and took said boy to Casper to live and to go to school; that said boy did live with them at Casper until June, 1934, at which time the said brother of the defendant informed him that he could not keep the boy longer; that the defendant was then working in the state of Washington as a farm hand and he informed the Haynes family that he would have to get another place for the boy Russell to stay; that the Haynes then informed the defendant in Washington that they would take care of the boy and have him live with him [them?] at Forsyth, and they did receive said boy at Billings, Montana, and continued to care for said boy continuously from June, 1934, to October, 1935, and clothed and сared for said boy and educated him; that the father and defendant returned from the state of Washington in the summer of 1934, and stayed at the Haynes home for about two months and a half in the fall of said year; and stayed continuously at the Haynes home from about January 1st, 1935, to June, 1935, when he went to Flathead Lake in Montana, where he worked for said Haynes on a cabin; that the work and labor and cash payments made by the defendant substantially paid for the board and room of the defendant himself and for that of his son during the times they lived in the plaintiff’s home. The court expressly finds, however, that the defendant at no time contributed to the support of Marion Fillner in any manner whatsoever after he had delivered said child under the agreement at Springfield, Illinois, to the plaintiff, up to the time of this trial, and never offered in any way to do so, and that the defendant by his conduct at all times since the delivery of said child to the plaintiff at Springfield, has ratified and approved and recognized the agreement entered into with the plaintiff herein.
*70 “IV. That the defendant is a single man and does not maintain a home, but rooms and boards, although the court finds that the defendant owns a home which he rents at Forsyth, Montana; that the defendant proposes, in the event the child is turned over to him, to send her to Casper, Wyoming, to the home of the brother hereinbefore referred to as one caring for the brother of the child Marion, until such time as he, the defendant, may establish a home of his own at Forsyth, Montana; that in such event the defendant proposes to bring a girl, a half-sister of Marion and Russеll, and who is about twenty-two years of age, to Montana from Illinois where she has been qualifying as a beauty operator, and set up housekeeping in Forsyth, Montana, and thus maintain a home, although there is no corroborative testimony disclosing the willingness or consent on the part of the half-sister as to this arrangement. The court does find, however, that the defendant is a man of reasonable income as a railroad fireman, and during the past year he has been more or less continuously employed, and that he is in a position to maintain such a home as he proposes, but the court further finds from all the evidence that the defendant is not now situated so that he is a proper person to receive the care and custody of the child Marion, and that her general welfare and happiness demands that she remain in the home of the plaintiff.
“V. That the plaintiff is a resident of Forsyth, Montana, and she has lived at that place with her husband for many years; that she maintains a suitable and proper home, and has been at аll times and is now a fit and proper person to have the care, custody and control of the child Marion, who will be nine years of age on the 6th day of February, 1937; that her husband, F. F. Haynes, has been for many years and is now the county attorney of Rosebud county, Montana; that the plaintiff is a graduate nurse, and that both she and her husband treat the said child Marion in all respects as their own child; that the plaintiff and her husband have no children of their own, and they are financially able to support and maintain Marion, and are willing to care for and educate her, and in all respects to *71 carry out the agreement hereinbefore mentioned whereby the said child was transferred to them by its natural parent.”
The evidence on many of the issues of fact was conflicting. There is substantial evidence to sustain all of the material findings of fact made by the court, and we cannot say that the evidence preponderates against those findings. Under the well-established rule in an equity case, such as this, we must, therefore, accept the facts as found by the trial judge, and will not disturb the decision of the trial court except upon a clear showing of an abuse of judicial discretion.
(Ex parte Bourquin,
It is generally held that a court of equity has inherent jurisdietion, to be invoked by petition, to award the custody of minor children, and that such jurisdiction is not taken away by a statute conferring like power on another court. (46 C. J. 1249, 1250;
In re Starr (Brock
v.
Josephine),
In awarding the custody of a child, the paramount considération is the best interests of the ehild in respect to its temporal and its mental and moral welfare. (See. 5878, Rev. Codеs.) Presumptively, the best interests of the child require that its custody be awarded to the parent (see. 5834, Id.), but this is a rebuttable presumption. Each case must be decided upon its own peculiar facts and circumstances. It is well settled that where a natural parent has voluntarily relinquished his ehild to another and there has grown up a reciprocal affection between the foster parent and the ehild, the court may refuse to disturb those relations at the request of the parent if the best interests of the child so require. (46 C. J. 1248, and eases there cited.)
The courts are not in accord as to whether an agreement be-tween a parent and another to surrender the custody of a ehild of the former to the latter is valid. Yvre need not here determine whether such an agreement is valid in this state. The legislature, however, has made this declaration on the subject:
*72
“It shall be lawful for the parents, parent or guardian or other person having the right to dispose of [a] dependent or neglected child to enter into an agreement with any association or institution incorporated under any public or private law of this state, for the purpose of aiding, ca.ring for, or placing in homes such children, and being approved as herein provided, for the surrender of such child to such association or institution, to be taken and cared for by such association or institution, or put into a family home.” (Sec. 12292, Rev.’ Codes.) Whether such an agreement is valid or not, it is proper to be considered in determining what is for the best interests of the child, and whether the parent has waived his right to its custody or is estopped from asserting it. (46 C. J. 1248.) As was said by the supreme court of Alabama, in
Campbell
v.
Sowell,
“It has been uniformly held in this jurisdiction that the prima facie right to the custody of the child is always in the parents, over all other persons, and this holding is almost universally recognized.
(Striplin
v.
Ware,
The supreme court of Nevada, in
Ex parte Swall,
In
Legate
v.
Legate,
In
Langenegger
v.
Purl,
(Tex. Civ. App.)
The supreme court of Idaho, in
Andrino
v.
Yates,
In
Hummel
v.
Parrish,
Mr. Schoulеr, in his work on Domestic Eelations, sixth edition, section 748, states the general rule thus: “American courts hold fast, nevertheless, to the true interests and welfare of the child. * * * Thus, * * * there are circumstances, where parental rights have been waived by the voluntary establishment of new relations permissively, under which the court will, from similar regard for the child’s welfare, refuse to disturb a custody voluntarily yielded, in favor of the parent who has long acquiesced in the transfer; thus regarding the ties both of nature and association. * * * Where the mother diеs, and the father tells the great-grandparent that he might take and keep his infant child as long as he and his wife lived, or until the child reaches the age of twenty-one, and the latter does take the child and care for it and keep it until it reaches the age of three years before the father has asserted any claim to it, the father has lost his right of custody. The contract was sufficiently definite to be enforced. The contract cannot be said to be unilateral and without consideration.”
To the same general effect are
Clark
v.
Bayer,
We do not assert that the foregoing cases are in all respects identical with this one on the facts; they do, however, serve to illustrate the point that the parent’s right to the custody of his minor child is not an absolute right, even though it be conceded that he is a fit and proper person to have such custody.
Here, through circumstances over which he had no control, the father was deprived of the means of rearing the child in a home of-his own. The child will be ten years of age on February 6, 1938. During the nine years since the death of the child’s mоther, the child has lived elsewhere than with her father, except as to such period of time that the father also lived at the home of plaintiff here, and except for about a year when they were together with a relative in Mississippi. For about six years she has lived with plaintiff and has been well provided for and well trained. The father now proposes to establish a home and have as his housekeeper the half-sister of Marion, now of the age of twenty-two years. There is no assurance that such an arrangement would last. The normal and natural thing for a twenty-two year old girl is to soon leave her parental home and establish one of her own. If that were to happen, then defendant, whose work takes him from his home and a large part of the time without the city wherein he maintains his home, would find it difficult properly to provide for the child. All of these matters were considered by the trial judge. The child has had excellent care and attention in the home of plaintiff, and there is every reason to believe that by reason of the strong affections that have grown between her and the child such care will be continued.
While all members of the court are reluctant to deprive the parent of the custody of his child, we have no hesitancy in holding that the trial judge did not abuse his discretion in holding that the best interests -of the child require it to be retained by plaintiff.
Defendant relied upon certain language appearing in the case of
Ex parte Reinhardt,
One other method, and one which is recognized by the authorities generally as above noted, is by estoppel or waiver of the right of the parent by the voluntary establishment of new relations permissively, as here, and where the best interests of the child require those relations thus created to continue.
This court in the case of
In re Thompson,
In the case of
August
v.
Burns,
The case of
In re Green,
Since the trial judge does not appear to have abused his discretion, the judgment is affirmed.