| Ark. | Jun 10, 1912
(after stating the facts). It was conceded by the appellees that the appellant is the mother of the child. Without going into detail in a discussion of the evidence, we are of the opinion that the foster mother, Mrs. Childers, is tenderly devoted to the young life that was left in her keeping, and that if she could be permitted to retain the custody of the child she would give it the best of attention, and that the child would be well provided for in every way possible for one in her situation and bearing the relation that she sustains to the infant. But the testimony on behalf of appellant tends to show that she is also amply able to provide for the' necessities of the child, and to properly maintain and educate it, and she is willing and anxious to do so. The appellant’s mother testified that she wanted “to pay all the expenses of the baby,” but the appellees were unwilling to surrender the child under any circumstances.
Now, even if the grandmother and the mother left the child in the custody of the appellee under the circumstances detailed by them, that would not give the appellee the right to retain the permanent custody of the child, nor would the appellee, Mrs. Childers, have such right if she had obtained possession of the child in the manner disclosed by her testimony. Even if the child were illegitimate, as a general rule, the mother’s right to the custody and control of same would be superior to that of any one else. Lipsey v. Battle, 80 Ark. 289; 5 Cyc. 637.
We are of the opinion that the best interests and well being of the child do not demand that this general rule be changed in the present case. As was said in the case cited, “it is a matter of great delicacy for the courts to take the custody of a child from its parents, and this should only be done when the well being of the child imperatively demands it.”
In Baker v. Durham, 95 Ark. 355" date_filed="1910-06-13" court="Ark." case_name="Baker v. Durham">95 Ark. 355, this court, speaking of the rights of the father to the custody of his child, used the following language: “It must be an exceptional case where the evidence shows such lack of financial ability or such delinquencies in character on the part of the father as to imperil the present and future welfare of his child before a court of chancery will deprive him of the duty and the privilege of maintaining and educating his child, and of the pleasure of its companionship.” The same rule applies in a contest between a mother and a stranger in blood as to the custody of her child. “ Unless a mother is incompetent or unfit, because of poverty or depravity, to provide the physical comforts and moral training essential to the life and well being of her child,” no court should deprive her of the right to its custody so long as she desires to maintain the parental relationship and to observe its obligations and enjoy its privileges and pleasures. She could not by contract voluntarily relinquish this right to other hands, for such an agreement would be without consideration and void; it would be against public policy and not strictly en-forcible. Washaw v. Gimble, 50 Ark. 351" date_filed="1887-11-15" court="Ark." case_name="Washaw v. Gimble">50 Ark. 351.
Judge Riddick, speaking of the mother’s right to the custody of an illegitimate child, in Lipsey v. Battle, supra, said: “This right is founded on the fact that the natural love and affection of a mother for such a child would probably be greater than that of any one else, and that the best interest of the child will greatly be subserved by allowing it to remain in her custody.”
We are convinced, from a consideration of the entire evidence, that the appellant is neither unable financially nor unfit mentally or morally to properly care for her own offspring, nor has she by her conduct created associations and environments for her child with appellees which it would be inequitable and improper for a court of equity to disturb.
The proof discloses that there was a willingness on the part of appellant to compensate appellees for their expense and trouble in taking care of the child during the time it was committed .to them.
Under these circumstances, although the proof discloses a strong affection on the part of the appellees, especially on the part of appellee Mrs. Childers, for the infant and a desire to continue to provide for him, nevertheless there is nothing to warrant a conclusion that the appellant is lacking in the natural affection of a mother, which is stronger and more sacred than that of any other, and which entitles her, under the law and the evidence here, to the relief sought. The judgment is therefore reversed, and a decree will be entered here awarding to appellant the custody of the child.