On Rehearing. I am concurring with the Presiding Judge in awarding the custody of this child to the respondent, its maternal aunt, and in doing so I feel that it will not be amiss to state briefly my reasons.
It is a rule well recognized by all of the authorities that the right of parents to the custody of a child is not absolute. The state is the sovereign and in its capacity of parens patriæ may assume direction, control, and custody of the child and delegate its authority to whom it may seem fit. This power is to be exercised by the courts within a sound discretion, guided and governed by the rules of law; the controlling consideration in each case being the best interest of the child. Ex parte Shuptrine, 204 Ala. 111, 85 So. 494; McDaniel v. Youngblood, 201 Ala. 260, 77 So. 674.
Having assumed jurisdiction to award the custody of a child, any order or decree affecting its custody is subject to future control and modification by the court as subsequent conditions and circumstances may require for its welfare. Authorities, supra.
Another principle with which I am deeply impressed by a reading of many of the numerous decisions affecting the custody of children, is that in a large degree each case must be decided upon the facts of the particular cause then being tried, as those facts apply to the general rules of law governing in the premises.
The petitioner in this case, through his able and astute counsel, has sought to make it appear that the proceeding is an effort to take the custody of this child from the father and give it exclusively to the respondent aunt, when the facts disclosed by this record have exactly the opposite tendency.
The child, a girl now about four and one-half years old, was prematurely born and to live at all was required to be kept under artificial development for a period of three months and eleven days. During that period then it was in the hands of science and the hospital authorities, and those who were interested could do nothing but watch and wait. Three days after the premature birth the *Page 486 young mother died, and so far as the child is concerned the father and relations awaited the development until such time as it could be taken away for future nurture as a child of normal birth. With the assent of the father it found its natural resting place in the arms and on the bosom of the loving sister of its mother. What else was there to do? To have left it then to the tender care of the father would have condemned it to a precarious existence and probably to death. Without the aid of courts or temporal judgment the natural love and affection of the parties and the surrounding circumstances fixed the custody in the maternal aunt, who was able and willing to assume the responsibility and burden of attending and nurturing the child through all the vicissitudes of infancy. Time moved on, the child grew and developed under the tender care of its aunt and with the consent of the father, who was still on good terms with the aunt and her husband and for a part of the time lived in the home with them.
After some years, the father sought another mate and jealousies and enmities began to arise between the father and his first wife's people, until the father remarried, and then there was an open breach resulting in a physical difficulty between the husband of the aunt and the father. Then followed a demand for the child and this proceeding. The second wife of the father may be, and doubtless is, a fine woman. She is, however, a stranger to the child and has for it none of that natural love and affection growing out of the ties of blood. To her the child is that of a strange woman who had the first and ardent love of her husband. However she might try, she could not take this child in her arms and feel the heart throbs of a dead sister or look into its baby eyes and see again the life of a loved one who had passed on in her pains to bring this child into being. The custody of this child, if awarded to this petitioner, would, according to the undisputed evidence, be in this stepmother. I may be wrong. My judgment I know is fallible, but I cannot bring myself to do it.
The pertinent facts in this case have been set out in the opinion prepared by the Presiding Judge, and I do not seek to reiterate them; but I am impelled to say that from a reading of this record, the impelling motive for this proceeding is not altogether the unselfish love of a father for a child. There are many facts which prompt me to say that if the welfare of the child had been the sole consideration, this suit could well have been avoided.
After a careful consideration of the whole case, I am impelled to concur in the opinion and the conclusion reached by the Presiding Judge.