I am not in accord with the idea that, when custody of a child below 12 years of age was denied the mother at the time of divorce because of her unfitness and awarded to the paternal grandmother who was found to be a fit person therefor, the court, upon the mother's subsequent petition for modification of decree to award custody to her, may give, as Mr. Justice BOYLES writes, "consideration to the statute by virtue of which in case of a separation the mother is prima facie entitled to the care and custody of children under 12 years of age. 3 Comp. Laws 1929, § 12852 (Stat. Ann. § 25.311)." Neither case cited (Burkhardt v.Burkhardt, 286 Mich. 526; Gorton v. Gorton, 316 Mich. 375) supports it. The Burkhardt Case presented the question of whether the custody awarded to the mother upon divorce should be so continued. The Gorton Case was an appeal from the original decree of divorce awarding custody to the mother and involved no petition for modification thereof. The two cases go no further than to recognize that the mother is, under the statute, prima facie entitled, at the time a divorce is decreed, to have the custody of children under 12 years of age awarded to her and thereafter to retain it unless and until it be shown that she is unfit or, for other reasons, the welfare of the children requires otherwise.
In point is Hart v. Hart, 266 Mich. 564, in which custody of 2 daughters below 12 years of age was awarded to the father and later, by amended decree, to the paternal grandmother. Three years after the divorce the mother petitioned for modification of decree to award her custody of the children upon a showing that she had remarried and now had a good home for the children. Denial of her petition was affirmed, this Court saying:
"If this were an initial proceeding for custody, the testimony would incline to plaintiff's contention *Page 339 that she is able to take care of the children better than is defendant or his mother. The showing upon which the court entered the original and modified decrees is not before us. We must assume it presented compelling reasons to the court to cause it to deny plaintiff custody of the children in view of the fact that the mother usually can and does give them better care than the father. Starting from that premise, we are not able to findtestimony which overcomes the former determination of the court and so clearly shows the unfitness of Mrs. DeGraw [paternalgrandmother] as official custodian and of defendant as actualcustodian of the children that we can say the former decrees, entered after mature consideration by the Court, should be setaside and the custody committed to plaintiff."
Similar is Bishop v. Bishop, 286 Mich. 567, in which neither party was found to be unfit to have custody of the children and, therefore, in accord with the agreement of parties, custody of the 6-year-old son was awarded to the mother and that of the 10-year-old daughter to the father by the original decree of divorce. Later the mother petitioned for modification of the decree to give her custody of the girl. The trial court granted the modification, which this Court reversed on the ground that, while the mother was not unfit to have custody, the change in her circumstances since divorce, in that she had remarried and now had a home for and desired the girl, was not such change as to warrant change of custody inasmuch as the girl was being well cared for by her father.
It is not enough for the mother to show a change for the better in her life or circumstances. A change for the worse in the boy's care or in conditions in the grandmother's home or other valid reasons why his welfare requires the change are prerequisites to the mother's right to have the decree modified to award custody to her after her unfitness at the time of the *Page 340 divorce had deprived her of the preference which she normally would have enjoyed under the statute. The custody awarded to the father or paternal grandmother, because of the mother's unfitness, may not, if the welfare of the child is to continue to be considered, be treated as of such temporary or transitory tenure as to be continually dependent upon how the mother happens to be behaving from time to time.
Mr. Justice BOYLES quotes from Sargent v. Sargent,320 Mich. 33. It will be noted that decision in that case was in no wise predicated upon the theory that the mother, after losing custody of the children because of her unfitness, would be entitled to reacquire such custody because of the preference accorded her, in the first instance, by the statute. Rather, this Court said, "The sole question is whether the court abused its discretion, after seeing and hearing plaintiff and the other witnesses, by awarding the custody of the children to plaintiff. We have held * * * that * * * a court of chancery has discretionary powers * * * to make such disposition as the best interests of the child appear to demand." In determining, in that case, whether the trial court had abused its discretion, recourse must, of necessity, have been had to the record, which disclosed language in the opinion of the trial court reading, in part, as follows:
"The court is concerned with what is best for the children. The testimony showed that the children, if custody is granted to the mother, could attend the public schools in Lansing, one of which is only a few hundred feet from the home of the plaintiff. The children have to travel some distance to attend country school where they now reside with defendant. The court believes that there would be other conditions which would be advantageous to the children if they were to reside in Lansing with their *Page 341 mother. * * * She has a good home, and the school advantages of the children would be better if they were living with the mother. * * * The children themselves have also indicated that they would like to live with the mother. * * * There is no question in the court's mind but what the real mother can give more love and attention to these children than the present wife of defendant."
From this, it is apparent that the trial court in the SargentCase was moved by the consideration that the welfare and best interests of the children required changing their custody from the father to the mother. Consequently, that case cannot be said to be authority for the proposition that custody of children awarded to the father at the time of divorce because of the mother's unfitness may subsequently be awarded to the mother merely on the strength of the statute, upon a showing that she has become fit but without a showing and finding by the court that the welfare and best interests of the children require such change in custody.
In the instant case the trial court found no change of circumstances in the grandmother's home or in relation to the care of the boy. Neither did it find that the mother's home or care would be better for him, or that, for any other reason, the welfare of the child required the change. Rather, the court seems to have been confronted, as suggested in Mr. Justice BOYLES' opinion, with "evidence of two good homes and two families who contested for the custody, where either home would be a properplace to leave the boy," under which circumstances the court had recourse to the statute and concluded that by reason thereof preference should be accorded to the mother. This was not in keeping with the meaning of our decisions in Hart v. Hart,supra, and Bishop v. Bishop, supra. *Page 342
In Mr. Justice BOYLES' opinion appears the statement that "In these cases the controlling question is, what is for the best interests of the minor." In cases where custody of children below 12 years of age had been awarded to the father or paternal grandparents, and they were being cared for properly there, we have held that it is not for their best interest to uproot them from their present homes (Sawyer v. Sawyer, 312 Mich. 524), that a change of environment is ordinarily not conducive to their welfare (Johnson v. Johnson, 318 Mich. 21), and that it is not good to disturb the status quo unless the court finds it necessary or proper for the good of the child (Lazell v.Lazell, 271 Mich. 271). In these cited cases, as in the Hart and Bishop Cases, supra, the fact that the mothers' positions had improved since divorce, that they were remarried and now had homes and could and would take proper care of the children did not avail, upon petition for modification, to take custody from the fathers or paternal grandparents by whom such children were being cared for properly. See, also, Smith v. Ritter,292 Mich. 26; Joslyn v. Ohlmacher, 229 Mich. 181.
The decree amending the original decree of divorce should be reversed and set aside, without costs.
*Page 343REID, J., concurred with DETHMERS, J.