I am unable to agree with the conclusion reached by the majority in this case. I am satisfied that our failure to arrive at the same result arises largely from the different weight we place on the child's welfare and the parent's presumptive right. Aside from the statutory provision, it is unquestioned that there is a presumption that the parent ordinarily has not only the natural but the legal right to custody of the *Page 669 child; that natural parental affection will guarantee the child's future welfare. But this is not true or controlling in all cases. The paramount consideration which has run through all of our cases is the best interest of the child.
The majority opinion devotes some space to the question of whether or not the child was abandoned by the father. In the sense that the boy was completely cut off and forgotten by his father, the evidence does not so indicate, but, as I read the record, I do not find that the father has shown the deep interest which we usually expect and generally find in parents who have their children's best interests at heart. Nor am I much concerned with the effect of the divorce decree, although I cannot agree with the statement that statutory rights of custody are not involved in divorce actions and that the court only decides the legal right of custody between the two persons who possess the statutory right of custody. As a matter of fact, in divorce proceedings, as in habeas corpus and juvenile actions, the interest of the child should be, and is, guarded, and there are cases where the district court fails to award the custody to either parent, having in mind the future interest and moral welfare of the child. It would be an unsupported conclusion for us to assume that in the divorce proceedings between the parents in this case there was no consideration given to the welfare of the child.
As to whether the father is a fit and suitable person to be custodian of the child the evidence is not very convincing. As to his present condition we have only the testimony of the father himself. Dating back to the time when plaintiff was a resident of Iowa, the evidence as to his character comes from his brother and sister-in-law, witnesses closely related. The child's maternal grandmother evidently desired to avoid any responsibility as a witness and to take no part in the controversy. So far as the future of the child is concerned, we have the father's testimony that he lives outside of Denver; that he is employed in war work (which employment in all probability will be temporary); that he is paying for a house, but with no statement as to how nearly the payments are completed or whether there have been one or many payments made; and that the stepmother is willing that the boy should make his home with them. Thus the present situation and the prospect for the boy's future surroundings *Page 670 finally settle down, in substance, to what the father can promise. The evidence is scant. On the other hand, there can be little dispute that the boy is now well situated; that he is doing well in school; and that he is in a home which, as shown by the results, is suitable and proper.
The majority suggest that the defendant, the present custodian, may marry again. This is, of course, speculation. But even if a new home should be created, it is no more than what has actually taken place with the father. Many things might occur which would alter the present situation, but we are concerned now more with what that situation is at present, rather than with some imaginary future condition. From what we now know, the boy's present surroundings are good and such as in all probability will conduce to his future welfare. No one can predict with certainty what the years may bring forth. The contingency suggested is not a dangerous one nor one from which we should fear much trouble. The child is, and should be, in the jurisdiction and control of the courts of this state, and if at any time any necessity arises for a transfer of custody, or if in the future it should not be to the best interests of the child for him to remain where he now is, under custody and guardianship of people whose character is shown to be excellent, the courts have the jurisdiction and power to make any such changes as may be for the best interests of the child and his well-being. The courts of Iowa have jurisdiction. They should retain it. I do not suggest that the courts of other states would be less effective if their jurisdiction is invoked. But therein lies the trouble. Here in the neighborhood where the child has grown up and is known, proper attention to his interests is more likely to be given than if we place the boy in strange surroundings, among strange people, and take him from neighbors and friends who have known him all his life.
The majority opinion states that when we speak of what is best for the child we do not mean that which the child wants. However, the child's wishes and the attachment he has formed for his present home are properly taken into consideration. They are, of course, not controlling, but are nevertheless to be considered. See Knochemus v. King, 193 Iowa 1282, 188 N.W. 957, in which case the wish of the child was the determining factor. *Page 671 The boy's contentment with his present surroundings enters into what is for the best interest of the child.
The language of Justice Evans in Jensen v. Sorenson, 211 Iowa 354, 364, 233 N.W. 717, 722, is applicable in this case:
"The child must be given a place to grow. It should not be too readily transplanted. Nor should it be tossed like a ball from base to base. For three years this child has been growing in the Sorenson family, and has found affection there. In our judgment, no adequate reason is shown in the record for a change of custody, unless it should be held that the father has a primary right to such custody. In cases where others than the parent have maintained the care and custody of a child and have become bound to it in affection, we have not infrequently held the rights of such custodian to be paramount to the rights of a parent, in a given case. Much that we have said in previous cases is quite applicable to the case at bar." Citing cases.
A child's habits and affections are fixed and deep-set. We should not without good cause change his environment or associations. When these are of satisfactory character they should not be lightly interfered with. We are asked, on a slight showing, to remove this child from proper and known surroundings to those of which we know very little, if anything. This is a step which the court should hesitate to take. At best, the granting of the parent's claim would involve a doubtful risk as to the future happiness and welfare of the child, and in such case the doubt should be resolved in favor of the child.
While this case is triable de novo, I am inclined to attach considerable importance to the finding of the district court. The trial judge had the opportunity to weigh the testimony, to see the witnesses, and to estimate the character of plaintiff and defendant. It was no doubt influenced by such estimate, and properly so. The character and suitability of each party as they appeared in the hearing were guides to the court's decision. Cases of this kind are among the most important that come before the district court and are tried with the full realization that the future of the child rests largely upon the court's action. I do not say that a decision of this nature on appeal must necessarily follow the district court, but I do urge that proper *Page 672 consideration should be given to the court's estimate of the parties, and its impression of the child himself, derived from his interview during the trial.
We are here asked to reverse the decision of the district court, which decision, I am satisfied, was made after a careful and conscientious review of everything which entered into the case. The majority opinion is largely based upon a strict construction of the statute which gives equally to the parents the natural guardianship of the children and their care and custody. Code of 1939, section 12573. This, of course, does not mean that the right of custody is absolute in either or both parents in all cases. When the best interests of the child are considered, it has ever been our holding that such interests are paramount. Knochemus v. King, supra; Risting v. Sparboe, 179 Iowa 1133, 162 N.W. 592, L.R.A. 1917E, 318; Ellison v. Platts,226 Iowa 1211, 286 N.W. 413, and cases cited.
I would affirm the decision of the district court.
OLIVER, GARFIELD, and MANTZ, JJ., join in this dissent.