84 Fla. 500 | Fla. | 1922
A wife living apart from her husband, brings habeas corpus to obtain the custody of two minor sons in the custody of the father. A writ of error was
In habeas corpus proceeding the custody and care of minor children may be awarded as will best conserve the welfare of the children, .the rights of parents to the custody and care of their children being subject to an adjudication of the courts as the welfare of the children may require.
In view of the father’s responsibility to care for and maintain both the mother and their children, when othei considerations affecting the welfare of the children do not require them to be awarded to the care of the mother or to another, the father is regarded as having a legal right to the custody and care of his minor children, when he is not shown to be an improper person to best conserve the welfare of the children. Miller v. Miller, 38 Fla. 227, 20 South. Rep. 989; Porter v. Porter, 60 Fla. 407, 53 South. Rep. 546; Hernandez v. Thomas, 50 Fla. 522, 39 South. Rep. 641; Busbee v. Weeks, 80 Fla. 323, 85 South. Rep. 653.
And children of different sexes, ages and physical and perhaps other conditions and stations in life, may require different awards of custody and care to conserve the individual welfare of the child.
This application is by the wife who lives apart from her husband, for the exclusive custody and care of their two sons who have been with the father, they being about eight and five years of age respectively. The older son was awarded to the father and the younger to the mother with privileges of temporary exchanges and visitation. The court expressly found on the evidence “that neither petitioner nor respondent is altogether so unfit as to give to
In Chapter 8478, Acts of 1921, it is provided that “the mother jointly with the father shall be the natural guardian of their children during infancy, ’ ’ et,c. This statutory provision has reference to joint rights of parents as natural guardians of their minor children. Joint rights are not involved in this proceeding. Each parent claims an exclusive right to the custody and care of the minor sons, and on the finding made the father’s custody should not be dis
The order is reversed and the cause is remanded for such proceedings as may be proper under the principles herein stated.
It is so ordered.