Opinion
No. 35908.
September 24, 1945.
1. PARENT AND CHILD.
The mother of a young child, whose father is dead, has right to custody of child unless she is morally unfit or otherwise unsuitable, or unless she has abandoned the child.
2. PARENT AND CHILD.
Evidence failed to establish that mother of young child, whose father was dead, had abandoned child, so as to be precluded from securing custody of the child.
3. PARENT AND CHILD.
Present situation, as well as future prospects thereof, showed that best interests of young child, whose father was dead, would be served by his being permanently committed solely to custody of mother who had remarried.
APPEAL from the circuit court of Smith county, HON. HOMER CURRIE, Judge.
O.M. Oates, of Bay Springs, for appellant.
The natural mother of a child is entitled to the custody of her minor child over and above grandparents or third parties, unless it is shown that the mother is morally unfit or has abandoned her child.
Nature gives the appellant, as the natural parent of this child, the right to the custody of her child, which the law rigidly enforces. This right is scarcely less sacred than the right of life and liberty and can never be denied save by showing the bad character of the parent and an abandonment. Such is not true in the case at bar.
Moore v. Christian, 56 Miss. 408.
As against the mother, the paternal grandparents have no right to the custody of the child unless or until it is shown that the mother has forfeited her right to her child by abandonment or by immoral conduct. It is presumed that the best interest of the child will be preserved by its remaining with its parent until the well recognized exceptions have been established. To deprive a mother of the custody of her child, to which she has a natural and legal right, as against all of the world, the appellees in this case must show an abandonment or immoral conduct. This they failed to do.
Kinnaird v. Lowry, 102 Miss. 557, 59 So. 843; Nickle v. Burnett, 122 Miss. 56, 84 So. 138; Stegall v. Stegall, 151 Miss. 875, 119 So. 802; Hibbette v. Baines, 78 Miss. 695, 29 So. 80; McAdams v. McFerron, 180 Miss. 644, 178 So. 333.
R.S. Tullos, of Raleigh, for appellees.
This is a habeas corpus proceeding brought by appellant against the appellees for the custody of her minor child of the approximate age of seven years. The circuit judge heard all the testimony offered by the respective parties in interest, and was able to appreciate the interest of the parties and able to give such weight and credibility to the evidence given by each witness as should be given, and after having duly considered the same, the court then knew what would be to the best interest of the child and entered an order denying the relief prayed for in the petition and dismissed the petition. It appears from the record in this case that the judgment entered was a righteous and just one.
The mother of a young child, whose father is dead, has the right to the custody of the child unless (1) she is morally unfit or otherwise unsuitable, or unless (2) she has abandoned the child. This rule as to the right of a parent is settled by a long line of decisions in this state, among which are Stegall v. Stegall, 151 Miss. 875, 119 So. 802, and Nickle v. Burnett, 122 Miss. 56, 84 So. 138. It is not seriously controverted in this case that the mother is in every way fit, able, and anxious, in which she is joined by her present husband.
What it takes to constitute abandonment is accurately stated in Amis on Divorce and Separation, Sec. 216, approved by this Court in McAdams v. McFerron, 180 Miss. 644, 654, 178 So. 333. The proof in this case not only falls far short of showing an abandonment under the approved rule, but, on the contrary, it affirmatively discloses that there was no abandonment. Moreover, the foregoing considerations aside, we think the whole record shows by a manifest preponderance, in fact beyond a reasonable doubt, that the present situation, as well as the future prospects thereof, is such that the best interests of this child will be served by his being permanently committed solely to the custody of his mother; and this will be the judgment entered by this Court.
Reversed and judgment here for appellant.