The assignments of error pursued on the brief are, that the court had no jurisdiction in this action to disturb the plaintiff's custody of the child; that the exclusive jurisdiction to remove the plaintiff as guardian was in the Court of Probate; and that the court erred in finding and refusing to find certain facts.
We have examined the evidence and see no reason to correct the finding. The finding that both parties are so situated financially that they can care for the child, is not inconsistent with the other facts found; and other corrections asked for, so far as they are material, are based on conflicting evidence.
The argument against the jurisdiction of the Superior Court is based on the theory that the joint guardianship provided for in § 4861 cannot be exercised *Page 157 while the father and mother are living separate and apart; that in such case the statute is inoperative, and therefore the rule of the common law survives, that the father, being a suitable person, is entitled to the sole custody even as against the mother. It is, however, too late to invoke the common-law rule in this State. The plain purpose of the statute was to make the legal rights of the father and the mother equal as joint guardians. Though they live separate and apart their legal rights as guardians remain equal. But if they cannot agree as to the custody of the infant, and appeal to the courts to determine to whom the custody of the child shall be awarded, their legal rights will be subordinated to the paramount consideration of the welfare of the infant. Kelsey v.Green, 69 Conn. 291, 37 A. 679; Dunham v. Dunham,97 Conn. 440, 117 A. 504. If the question of the custody of the infant be presented in divorce proceedings, or by writ of habeas corpus, the Superior Court is the proper forum. Otherwise, the probate courts have exclusive jurisdiction. Dunham v. Dunham, supra. In either court, as we said in that case, "the welfare of the ward of the State is the paramount consideration, whether the controversy be between parent and parent or between a parent and a stranger." The determination of the custody of an infant, especially when both parents are suitable custodians, rests largely in the discretion of the trial court which sees and hears the contending parties; and in this case there is no claim that it has misused its discretion. It is perhaps unnecessary to add that the Superior Court has not by this judgment removed the father as joint guardian of the infant.
There is no error.
In this opinion the other judges concurred.