122 Miss. 56 | Miss. | 1920
delivered the opinion of the court.
The appellee filed a bill in the chancery court for the custody, control, and possession of Carl Nickle against his father, Clifton Nickle, in which she alleged that the said child is about nine years of age, and that she had administered to his necessities since he was less than one year old; that she had supported him during this time; that she was the sister of the mother- of the child, the mother dying When the child was about five months of áse; that she had the custody of said child until recently, when Clifton Nickle, the father of the child, forcibly took the child from her; that at the time she took the child in its infancy the said Clifton Nickle by his conduct, acts, and statements assured the relator that she would never be disturbed in the possession of the said child. She also alleged that the father was an unsuitable person to have charge of said child; that he is harsh and profane, and conducts himself in a manner unbecoming a father in the presence of a son; that the relator is able and willing to rear* said child, and prays for the possession, custody, and control of said child.
The appellant denied that he had ever abandoned the child, denies that he has not supported him, denies the allegations with reference to his unfitness to have and rear the said child, and denies that he unlawfully took possession of the said child, but admits the allegation that the relator loves the child, and avers that he has the deepest affection for his child, and that it is right and his positive dutv for him to have the custodv and control of the child.
The testimony shows that the mother of the child, who is the sister of the appellee and wife of the appel
The proof abundantly shows that appellant and his wife are people of good character and able to care for the child and give him proper attention. Likewise the proof shows that the appellee is a person of good character and ample means to take care of and rear the child.
The court in its decree found as a fact that the father had not abandoned the child, and further that it was not shown in the proof that he was unfit or incapable as custodian of the child, but recited that, on account of the ties of affection that now exist between the relator and the child and that the relator was able in every wav to provide a good home and better educational advantages for the child at present, the appellee, the aunt, should have the custody of the child until the July term, 1920, and that the case be set for that
We think the proof fails to show any abandonment by the father, and that his leaving the child in the custody of the relator and her mother and father was prompted by feelings of consideration for the child and for the grandparents, and not prompted in any way by any lack of affection or consideration for the child. • ! ■ ' ']
“The very tenderness and silence and awful sanctity of that scene — the last interview between the husband and wife — would make it doubly hard for the husband to express any dissent, if he felt it, from her expressed wishes. The cold processes of reason, proper enough as tests of conduct in the ordinary transactions of life, are not the alembic by which to try the reasonableness of conduct in the pain and passion of such an hour.” Hibbette v. Baines, 18 Miss. at page 721, 29 So. at page 87, 51 L. R. A. 839.
The present case is very much like the Hibbette v. Baines Case in all of its aspects. The chancellor having found, and necessarily must have found from the evidence, that the father1 had not abandoned the child, and that he was a suitable person to have the custody and control of the child, we think the father had the absolute right to the custody and control of the child. The case is controlled by the Hibbette v. Baines Case, from which we quote the following:
“Undoubtedly, the father has primarily, by law as by nature, the right to the custody of his children. This right is not given him solely for his own gratification, but because nature and the law ratifying nature assumes that the author of their being feels for
The court in that case adopted the law as announced in Weir v. Marley, 99 Mo. 494, 12 S. W. 798, 6 L. R. A. 672, and enters into an elaborate review of the authorities pertaining to such controversies, and then sums up the situation in the following words:
“The horizon which bounds the child of ten or thirteen is not the horizon the whole perspective of which is necessary to take into view in determining who shall have the training and character building of ’ children. The vision of the little ones of ten and thirteen sees nothing beyond the horizon bounding those years. They cannot balance the advantages and disadvantages of different custodians, so as to correctly determine which one will guide it best, and fashion it most wisely into, the make-up of perfect manhood and womanhood.” 78 Miss. at page 721, 29 So., at page 87, 51 L. R. A. 839.
We think, as against all save the mother, the father has the supreme right to the control and custody of his child unless he has forfeited this right by immoral conduct, or by an abandonment of the child, and that the mere fact that the affections of other people have attached to and grown for the child, and that they may have had temporary custody of it, under circumstances not amounting to abandonment on the part of the parent, does not warrant the court in depriving the parent of his child or children. The proof shows that at the home of the father there are adequate advantages, social, religious, and educational, for a child of this age, and the mere fact that these advantages might be somewhat better at another point does not authorize
The judgment of the court will therefore be reversed, and decree entered here in favor of the appellant.
Reversed, and decree for appellant.