125 So. 225 | Ala. | 1929
The prayer of appellant's bill is that the custody of his daughter, 4 1/2 years of age, be awarded to him, and that respondent, the mother, be enjoined and restrained against removing said infant from his custody and control. It is averred that respondent has voluntarily abandoned the bed and board of complainant without fault on his part and without his consent and is "seeking or threatening to take said infant daughter from the custody, control and supervision of complainant, and remove it from Covington County, Alabama, where complainant has been supporting, maintaining, and caring for said wife and daughter," and that the best interests of the child demand that it be left with complainant. There is, however, no averment that the mother is an unfit person to have the custody and control of her infant daughter.
It is a commonplace of the law that in every inquiry of the sort presented by complainant's bill the court will look in the first place to the interest of the child. Children's Aid Society v. Davis,
The bill in the present case does aver that the complainant father was without fault in the matter of the separation; but it does not aver that the mother was at fault, nor that, having regard to her prudence, ability, and fitness (to use the language of section 8278), the mother is not a proper person to have the custody, control, and education of the child of the parties now that they are living apart. The decree sustaining the demurrer to appellee's bill will be affirmed, and, in order that appellant may have an opportunity to amend within a time to be appointed by the chancellor, the cause will be remanded.
Affirmed.
ANDERSON, C. J., and THOMAS and BROWN, JJ., concur.