Opinion
June 19, 1942.
Appeal from Perry Circuit Court.
Roy Helm, Judge.
Ward Ward for appellant.
C.W. Napier for appellee.
Affirming.
The appellant, Walker Fugate, and appellee, Emily Fugate, are husband and wife, and have one child, a daughter, fifteen months of age. On June 1, 1942, the appellee filed in the Perry circuit court a petition for a writ of habeas corpus. In her petition she alleged that the appellant abandoned her in March, 1942, and wrongfully and forcibly took from her without her consent her infant daughter, and was then keeping and holding said child by force and without right. She also alleged that she was able and willing to provide the child a comfortable home, and that she was a suitable person to have the custody and control of the child. Upon the trial under the writ the court awarded custody of the child to its mother, and the defendant has appealed.
The proof heard on the trial is incorporated in the bill of exceptions in narrative form. Except certain inferences sought to be made from statements in a letter written to appellant by appellee after their separation, there is a complete absence of proof tending to show that she is not a suitable person to have the custody of her child. We have held in numerous cases that children who, by reason of their tender years, need the attention of their mother, should be placed in her custody where there is no evidence that she is an unsuitable person. Sowders v. Sowders, 286 Ky. 269, 150 S.W.2d 903; Caudill v. Caudill, 172 Ky. 460, 189 S.W. 431. As said in Hoffman v. Hoffman, 190 Ky. 13, 226 S.W. 119, 120:
"Having in view the welfare of the children, it is our settled practice in cases of divorce to award the custody of children of tender years, especially girls, to the mother, unless it be made to appear that she is not a suitable person."
In the instant case the evidence is not sufficient to show that appellee is an unsuitable person to have the custody of her child, a girl, fifteen months of age.
Judgment is affirmed.