201 Ky. 302 | Ky. Ct. App. | 1923
Opinion op the Court by
Reversing.
In 1913 Virgie Vanover and Brownlow Johnson were married in Pike county, Kentucky, and to this union two children were born, one of which later died, and the survivor, a little girl now six years of age, Laura Bell Johnson, is the subject of contention.
Several years after the birth of this child, owing to marital difficulties, the parents separated, and during this interim it was charged and frankly admitted that Virgie Johnson was guilty of adultery with one Sam Vanover, and upon its discovery by her husband, he applied for and
It would seem that the grandparents, Cas and Causby Johnson, are quite aged and live in a very small, two-room cabin, where they now have six children besides Laura Belle Johnson. They are exceedingly poor and are not the possessors, apparently, of sufficient means to provide proper food and clothing for them. But nowhere in the testimony do we find that they are not people of good moral character, whose intentions are of the best. The testimony further shows that the appellants, James Van-over and his wife, Virgie (the mother of Laura Belle Johnson), are in exceedingly comfortable circumstances and their home is in every particular thoroughly fitted for the maintenance of the child. Several witnesses so testified and to the effect that in their opinion the general welfare of the child would be greatly enhanced by her removal to this home; and throughout the entire testimony we do not find one word derogatory to the character of
Under all the circumstances, it would seem the wise, just and merciful act to restore this child to its mother. Can this court agree with the contention of appellees that the portals to_ the hope- of etenaal salvatioaa slaall be forever closed to one guilty of acts of indiscretion in the past, whose conduct nov ijs above reproach, showing con
•^Numerous authorities are cited by -both appellants and appellees, and in the case of Stapleton v. Poynter, 111 Ky. 264, it is held:
“While the welfare of the child is to be considered in determining who is to have its custody, the legal right of the parent should also have weight; and therefore the widowed mother of a boy nine years old is entitled to his possession, as against his paternal grandparents, with whom he has lived for several years, though they have fortune, character, kindliness and affection for the child, and though he prefers to remain with them; the mother being a person of moral habits without contagious or infectious disease, and of enough industry to reasonably insure the child from want. ’ ’
This decision goes even further than the case in question, as by the evidence it is shown that the grandparents are not financially in a condition to provide for this child as are the appellants, and the testimony of James Bentley on pages 19 and 20 of the transcript is to the effect that the conditions existing in the home of appellees are bad.
In L. R. A. 41 (N. S.) 577, it is stated,
“On habeas corpus it was held that an infant should be awarded to the custody of its mother where it was of tender years and she was a proper person.”
In People ex rel. Sinclair v. Sinclair, 91 App. Div. 322, 86 N. Y. Supp. 539, the father was deemed the proper person, the court saying:
< < Tpere can pe no doubt but that, under section 40 of the domestic relations law (Laws 1896, chapter 272), the court has the authority to award the custody of the child to the mother or to the father.”
We further find in 41 L. R. A. (N. S.) 577:
“And in Ex Parte Reed, 19 S. C. 604, an action for separation, it was held that the father was not a proper person to have the training of young children, and they were left in the custody of their mother. It was held discretionary with the court to which of the parents the children should be committed.
See the sustaining case, almost analogous in fact, Mason v. Williams, 165 Ky. 331.
Therefore, would it not seem that Laura Belle Johnson, a girl of tender years, should properly be in the custody of the mother?
Attorneys for appellees cite the following cases: Shallcross v. Shallcross, 135 Ky. 418; Bedford v. Hamilton, 153 Ky. 429. Both of these fail signally to strengthen their contention, and in fact are in nowise applicable to ihis action.
We are,'therefore, of the opinion that the general good and future welfare of this child would be greatly enhanced in the home of appellants, and the judgment is reversed.
Judgment reversed and cause remanded for proceedings consistent with this opinion.