The majority opinion, without just cause as I see it, violates the mother-right to custody of her infant child. And in awarding the child to other persons the decision appears to be against the young *Page 229 mother on three specific grounds: (1) That she is not skilled in any craft or trained for any profession or employment except keeping house; (2) that the husband is away from home in the army of his country; and (3) that the mother is not financially independent, therefore the court assumes she must labor for subsistence, and while working leave her baby with others to care for.
Then the decision appears to turn on the point of comparative abilities to care for the child, in direct conflict with former decisions which hold expressly that such point may not be controlling against a parent.
The majority opinion entirely overlooks the point, or finds it of no importance, that the trial court found this mother to be a fit person to have custody of her child. The mere awarding of the child to the mother would have implied that finding of fact, but here the respondents, Mr. and Mrs. Cox, affirmatively alleged the petitioner, the mother, was not a fit person to have such custody. Thus a specific issue was made on that point and determined in favor of the child's mother, Mrs. Hamblin.
Then this mother is entitled to custody of her child as the trial court ruled. We should affirm unless we take judicial notice that it is true in fact that the wife of a first sergeant in the army is so destitute as to be wholly unable to maintain herself and child, because at present she is only skilled as a housekeeper. For any court to assume such to be true would be a harsh indictment of our war-time government. I prefer to take notice of the law under which substantial allotments would be made by the husband and by the government. I also prefer to recognize, as everyone knows, that in many cases the wives of sergeants, and even of privates, are able, with the government allotments, to carry on at home and maintain themselves and one or more children, while the husband is absent fighting the war.
The majority opinion unduly emphasizes the fitness and financial ability of Mr. and Mrs. Cox to care for this child. Their fitness or ability simply was not questioned. Therefore, the record does not show whether they have income above or below the $148 per month income of Mr. Hamblin, or whether they have a fortune and are not dependent on an income. The most that can be assumed is that the financial resources of Mr. and Mrs. Cox are greater than those of Mr. and Mrs. Hamblin, how much greater we do not know because the record is silent on it. Add to that presumption the fact that Mr. Cox is home, while Mr. Hamblin is away from home serving as a first sergeant in his country's army, and you have the difference which by the majority opinion is of such controlling importance as to outweigh everything else, and to require that the custody of the child be given to Mr. and Mrs. Cox rather than to its mother, Mrs. Hamblin, and all that contrary to the findings of the trial court judge, who saw the witnesses and parties and heard them all testify.
This is the first case in which this court has been called upon to test the ability of a mother to support herself and child while her husband is away in the army. Although she testifies she can make it, and although the trial court was satisfied she could succeed, the majority rules otherwise and will not give her a chance to try it; as if to say at once that her testimony is only an example of untrustworthy enthusiasm of youth, and the trial court's conclusion only a simple example of misplaced confidence. When the trial court judgment so plainly marks the course we should follow, it is unfortunate that we should reverse in this first, and therefore precedent-making, case on this question.
This woman is as much entitled to the custody of her child as if it were born after marriage. The law provides, 10 Ohio St. 1941 § 5[10-5], that as to a legitimate child "The father . . . or mother" is entitled to custody. The next section, quoted in full, is as follows:
"The mother of an illegitimate unmarried *Page 230 minor is entitled to its custody, services and earnings."
The last-quoted rule fixed by statute is confirmed by our decision following it in Allison v. Bryan, 26 Okla. 520,109 P. 934. And it is the rule elsewhere, of course. See annotation 51 A.L.R. 1507, citing decisions of various states.
It goes without saying that her misfortune does not prevent this mother from applying to the courts to protect her rights, nor lessen the force of her plea for those rights which are specifically her rights even in the case of such a misfortune.
We have no more right in law to deprive this mother of her child than we have to deprive a mother of her legitimate child under similar circumstances. Many legitimate children are being cared for by the mother while her husband is at war, and certainly when we are considering only the ability to properly care for the child, as here, the legal mother-right being the same, we should apply a similar test. The fact is, and it is the law, that in either instance we should award custody to the mother unless she be an unfit person to have such custody. While if she be an unfit person to have that custody, then it should be denied her, whether the child be legitimate or illegitimate.
There is here shown no unfitness of the mother nor any necessity so far as the child is concerned, merely that Mr. and Mrs. Cox are better able, by comparison, to support the child.
Another point which concerns me is that the majority opinion is contrary to our former decisions. The opinion correctly holds that the purported adoption by Mr. and Mrs. Cox was void and a nullity, and in that respect or on that point the opinion cites and follows the decisions. But on the other point, that is, taking custody away from the mother, the majority opinion is against many decisions of our court, a few of which I now cite.
In Jamison v. Gilbert, 38 Okla. 751, 135 P. 342, this court followed the law and awarded the child to its father as against its maternal grandparents, and the law there declared and followed is properly applicable here, for it was held in paragraphs 2 and 3 of the syllabus as follows:
"The unfitness which will deprive a parent of the right to the custody of his minor child must be positive and not comparative; and the mere fact that his minor child might be better cared for by a third person is not sufficient to deprive the parent of his right to its custody.
"It is not sufficient, to establish the unfitness of a parent for the custody and control of his minor child, to show that he has some faults of character or bad habits: it must be shown that his condition in life or his character and habits are such that provision for the child's ordinary comfort and contentment, or for its intellectual and moral development, cannot be reasonably expected at the parent's hands."
In the case of In re Butler (Popham v. Cross), 41 Okla. 629,137 P. 673, this court followed the law and awarded custody to the mother and announced this controlling rule in paragraph 1 of the syllabus:
"The legal right of the mother of a minor child, its father being dead, to its custody and control, is superior to that of a third person, whose claim is based upon the fact that he has cared for and supported the child for some two or three years."
In Lynch v. Poe, 53 Okla. 595, 157 P. 907, child custody was awarded the father as against the maternal grandparents who had cared for the child three years. The court held in the syllabus as follows:
"In a contest between the father and grandparents, in order to deprive the father of the custody of his child, it must be shown that his condition in life, or his character and habits, are such that provision for the child's ordinary comfort and contentment, or for its intellectual and moral development cannot be reasonably expected at the parent's hands." *Page 231
In all three of these cases the children had for a period of years been cared for by others who contested to continue that custody as in the case at bar.
In Hedtke v. Kukuk, 93 Okla. 264, 220 P. 615, the court followed the law, awarding custody to the father as against the maternal aunt and uncle, holding in paragraph 3 of the syllabus as follows:
"In a habeas corpus proceeding brought by the surviving parent to recover custody of a minor child, the burden of proof is upon the respondents to show they hold the child under an order of a court of competent jurisdiction, or that the petitioning parent is an unfit and improper person to have such care and custody."
In Brooks v. Preston, 134 Okla. 272, 273 P. 345, custody was awarded to the father as against maternal grandparents who had cared for the child from the time it was about ten months old, the court holding in paragraph 1 of the syllabus as follows:
"In a contest between the father and the grandparents, in order to deprive the father of the custody of his child, it must be shown that his condition in life, or his character and habits, are such that provision for the child's ordinary comfort and contentment or for its intellectual and moral development cannot be reasonably expected at the parent's hands."
In Sherrick v. Butler, 175 Okla. 538, 53 P.2d 1097, custody was awarded to the mother as against paternal uncle and aunt who had cared for the child for five years, from the age of two to the age of seven, although in that case the mother, being forced by necessity to go out and work, had undertaken to agree specifically to let the child's uncle and aunt keep and rear the child. It was held there, as in the other cases, that the mother must prevail unless shown to be an unfit person, but that the unfitness must be of positive nature and character and not merely comparative with the abilities of others to care for the child.
In Scroggins v. Griffin, 185 Okla. 456, 94 P.2d 244, custody was given to the father against the maternal grandparents, although they had cared for the child over a period of years, and the court properly held in the third paragraph of the syllabus as follows:
"The unfitness which will deprive a parent of the right to the custody of his minor child must be positive and not comparative; and the mere fact that the child might be better cared for by a third person is not sufficient to deprive the parent of his right to its custody."
I think the rule of those cases is the universal rule. I think the decision here should follow that rule. Since the majority opinion departs therefrom, it should so state, and perhaps given reason therefor, lest it serve to multiply confusion in the minds of litigants, lawyers, and trial judges, as to which decisions still stand, and as to which rules still survive.
The lack of any authority to support the majority opinion is strikingly demonstrated by the character of decisions cited in the opinion for apparent support. The majority opinion cites six decisions, only one of which has anything to do with child custody, and that is the first case cited, Ex parte Sloan,147 Okla. 164, 296 P. 398. That was a contest between the mother and others for child custody, but after the case was lodged here on appeal the parties stipulated in detail for the custody of the child, and our opinion approved that stipulation which was entered into by the parties and specifically based upon a change in conditions since the former trial.
The opinion cites four cases, Pevehouse v. Adams,52 Okla. 495, 153 P. 65; Marshall v. Grayson, 64 Okla. 45, 166 P. 86; Martin v. Bruner, 64 Okla. 82, 166 P. 397, and Lee v. Little,81 Okla. 168, 197 P. 449. Each of the four is a suit to cancel deeds for fraud and they announce the general rule for testing the sufficiency of evidence in a case of equitable cognizance, but they have nothing further to do with any of the points involved in this case. *Page 232
The remaining one of the six decisions cited is Hart v. Frost, 73 Okla. 148, 175 P. 257, which was a suit to correct a deed to make it conform to the terms of contract of purchase. It likewise announces the rule for weighing evidence in an action of equitable cognizance, but that is all.
I respectfully, but insistently, urge that this opinion should follow the trial court's conclusions of fact which are not found in the majority opinion to be contrary to the weight of the evidence, and that the opinion should follow the law so often announced in our former decisions.
In the body of the opinion, immediately following the two quotations from Ex parte Sloan, there are inserted some statements of fact and of conclusions which are contradictory of other parts of the opinion, and are confusing as to the real conclusion of the court. It is there stated that this mother did not compensate Mr. and Mrs. Cox for caring for this baby, as if that were important. She did not, it is true, but they did not expect pay. They did not start caring for this baby for pay and never requested compensation, and so far as this record shows never wanted pay. Nor did the mother go very far away, only about 30 miles into an adjoining county. It is there stated as a fact, though the basis of the statement is not shown, that the mother had given no permanent address at which she could be reached. To the contrary, the record discloses at pages 20 and 21 the number of times the mother visited Mrs. Cox; that she fully advised Mr. and Mrs. Cox as to her location and address and received mail from them at such address and wrote Mrs. Cox several letters. At this point the opinion notes that "the paramount issue is, what will be for the best interest of the minor child?" Likewise the trial court stated the finding in the journal entry that the best interest of the child was "one of the paramount issues in this case." But that court found all issues in favor of the mother. Now, without saying that finding is against the clear weight of the evidence, in any particular, the majority assumes the other view, and wrongfully so in my opinion.
For these reasons I dissent.