Wofford v. Clark
102 S.W. 216
Ark.
1907
Check Treatment
Wood, J.,

(after stating the facts.) This court in Verser v. Ford, 37 Ark. 30, said: “ As between the father, too, and the mother, or any other near 1 .mtion of the infant, where sympathies on either -side of the tenderest nature may be relied on with confidence, the father is generally to be preferred. In the great majority of cases his ability and knowledge of the world render him the fittest protector, although that is not the test. The preference is -conceded to the ties of duty and affection, and attends the primary obligation of the father to maintain, -educate and promote 'the happiness of the child, according to his own best judgment and the means within his power. Any system of jurisprudence which would -enable the courts in their discretion, and with a view solely -to the child’s best interests, -to take from him (the father) that right, and interfere with those duties, would be intolerably tyrannical, as well as Utopian.” This is not one of the exceptional -cases, as in Coulter v. Sypert, 78 Ark. 193, where the circumstances justified the court in depriving the father of his child and giving him to the grandparents. The differepce in the facts is shown by reference to the statement of the cases. Here we are of the opinion that the -best interests of the child, even if that were the test, according to the preponderance of the evidence, demand that the father have the care and custody. He ,is amply able, from a -financial standpoint, to maintain and educate his -child, and the proof does not show him to be so devoid of moral attributes as that the welfare and safety of his only child require that he should be separated from his father and given to another. True, there is -evidence to the effect that the boy said he had heard his father curse, and that his father had given him whisky to drink. But the circumstances are lacking in detail as to when, where, how many times, etc., this was done. Certainly, such conduct on the part -of a father toward his seven-year old child deserves severe condemnation from a moral viewpoint. But it would not do to deprive every father of the care and custody of his son because of such conduct, especially when the circumstances are not known. The policy of the law is not to sunder the companionship of father and his infant son for such obliquities unless they are so frequent, flagrant and long-continued as to be a permanent menace to the proper physical, mental and moral development of the infant.

In Lipsey v. Battle, 80 Ark. 287, we said: “The courts may remove a child from the custody of its parents, but this will only be done when it is plainly necessary to secure the present and future wellbeing of the infant.”

We are of the opinion that no such considerations are established in the case at bar. But, even if the facts had warranted the chancellor in giving the custody of the child to his grandmother, .the decree does not do so. The “changing habitation,” which the chancellor’s decree provides for the child, is most detrimental to his best interests in every particular. The child should have, in any event, a definite and settled home, either with his grandmother or with his father, and not have the environments of home life shifted and changed with every month. This is certainly not conducive to the best development and training of the child. While great weight should be given to the decree of .the chancellor where, as in this case, he sees the parties and is more cognizant of the local surroundings than this court, we are, nevertheless, of the opinion that the decided preponderance of the evidence shows that his decree is erroneous. It will .therefore be reversed and remanded with directions to the chancellor to enter a decree giving to appellant the permanent custody of Bennie Wofford. But, in consideration of the tender love of the appellee for the child, she shall be permitted to visit him at the home of his father whenever she desires, and the appellant shall be required at all reasonable and convenient times, in the discretion of the chancellor, to see that the child visits his grandmother, the appellee, upon her request for 'him to do so, and whatever expense may be attached to such visitations by the child to his grandmother shall be borne by the appellant. The chancellor will retain the jurisdiction, as heretofore, to make such orders, not inconsistent with this opinion, as he may deem necessary to preserve and protect the rights of the parties as above indicated.