By judgment entered on the 19th day of October, 1977, the marriage between Jarvis Douglas Johnson, Sr. (not a party to this appeal) and Carolyn Johnson (now Bolin), Appellant and natural mother of the children of the marriage (mother), was terminated. The children of the marriage, Debby Eloise Johnson, then approximately six years of age, Jarvis Douglas Johnson, Jr., approximately five years of age, and Travis Douglas Johnson, approximately nineteen months old were placed in the “permanent care and custody” of Naomi Johnson, paternal grandmother of the children and one of the Appellees. The father of the children was given rights of visitation with the children and the mother given weekend visitation from 5:00 p.m. Friday to 4:00 p.m. Sunday.
On October 27, 1981, the mother filed a Motion to Modify seeking custody of the children because of a change in her condition. On December 30, 1981, Naomi (paternal grandmother) and McDonald Johnson (paternal grandfather and Appellee) filed a Motion to Modify seeking further limitation upon the mother’s visitation rights.
After trial to the court, the district court on the 9th day of March, 1982 entered a judgment finding and determining, in part:
“1. That defendant’s (mother’s) Motion to Modify should be and is hereby overruled; that the Court makes no finding of unfitness on the part of the defendant, but finds that it is in the best interests of the minor children of the marriage that they remain in the legal custody of the paternal grandparents, all pursuant to the Decree of Divorce herein.
“2. That the paternal grandparents’ Motion to Modify with regard to child support should be and is hereby sustained; that defendant is ordered to pay to the grandparents the sum of fifty dollars ($50.00) per month per child as and for support, said payments to begin on the 1st day of April, 1982.
“4. That the paternal grandparents' Motion to Modify visitation should be and is hereby overruled; and that visitation with the minor children should remain pursuant to the terms set forth in the Decree of Divorce.”
The mother appeals. The Court of Appeals Affirmed. We granted certiorari. The opinion of the Court of Appeals is withdrawn.
In the case of
Richard Grover v. Phillips,
Okl.,
Grover, supra, is however, distinguishable from the case at bar in several respects:
1. Grover was a habeas corpus proceeding brought by a surviving non *80 custodial parent against the grandparents who were caring for the child following the death of the custodial parent. In the case at bar, the mother sought custody of her children by a motion to modify a divorce decree which decree had awarded custody to a grandparent more than four years prior to the filing of the motion to modify, on the basis of a change in the mother’s condition.
2. The divorce decree award of child custody to the grandparent in the case at bar was entered as a result of an agreement thereto by both parents of the children and the grandparent.
3. In Grover, no court decree determination of custody rights had been made prior to the habeas corpus proceeding. In the case at bar, the district court had previously entered a decree awarding custody of the children to the maternal grandmother.
The case of
Potter v. Potter,
In Potter, this court gave full recognition to the parental preferential right of custody of the children as followed and reaffirmed in Grover, supra. But we further said (1014): “The weight of authority is that when a parent has, either by abandonment or contract, surrendered his present legal right to the custody of his child, in all controversies subsequently arising respecting its custody, the matter of primary importance is the interest and welfare of the child. To this the right of the parent must yield.” (Citations omitted).
In
Gibbons v. Gibbons,
Okl.,
In
Carpenter v. Carpenter,
Okl.,
In the case before us, the mother was destitute, unemployed and living with a brother with no financial or home resources with which to care for her children at the time of the divorce decree. During the approximately four years intervening between the granting of the divorce and the filing of the motion to modify, she has remarried to a man who is gainfully employed; she is also gainfully employed; she and her husband have established a suitable home; and she and her husband have maintained a relationship with the children under her visitation rights established by the divorce decree. Thus she had demonstrated a change in her condition since the entry of the previous custody order, i.e., her fitness to be a custodial parent.
Under the record before us, the mother has wholly failed to meet her additional burden, that the change in conditions directly affect the best interests of the children, and that as a result of such change in conditions, the children would be substantially better off with respect to their temporal, mental and moral welfare if the requested change in custody be ordered.
*81 The record is devoid of any showing that the custodial grandparents are unfit, that they have not furnished a proper home and family atmosphere, or that the welfare of the children would be better served by removing them from the home and family where they have resided for approximately four years.
The action of the trial court is not clearly against the weight of the evidence.
The judgment of the trial court is affirmed.