I have carefully read the entire record in this case, and am unable to agree with the majority opinion.
It is elemental and fundamental that a parent is entitled to his child, and a child is entitled to his parent. The rule runs through all nature. It is the heritage of parenthood and of childhood. The rich, the poor, the cultured and illiterate all are moved by this common impulse — which is the salvation of the race — to have and to hold their own. In the law the authority of the parent to have possession and control of his child knows no limit save only that such authority must not be so exercised as to endanger the child's safety or morals.
Further, the law says the custody of the child rests in the discretion of the court. McKenzie v. State, 80 Ind. 547; Smith v. Bragg, 68 Ga. 650; Stringfellow v. Somerville, 95 Va. 701, 29 S.E. 685. The exercise of this discretion will not be disturbed on appeal except in case of its manifest abuse. Washaw v. Gimble, 50 Ark. 351, 7 S.W. 389; Beall v. Bibb, 19 App. Cas. (D.C.) 311; Breckenridge v. Breckenridge,103 Okla. 261, 229 P. 774; Zink v. Milner, 39 Okla. 347, 135 P. 1; Hedtke v. Kukuk, 93 Okla. 264, 220 P. 615; Jamison v. Gilbert, 38 Okla. 751, 135 P. 342.
In the case at bar, the trial court listened with characteristic patience to a volume of evidence, both as to the fitness and unfitness of the petitioner to raise his children and as to his ability to support and maintain them, and, at the conclusion of the first hearing, the case was suspended and taken under advisement for a period of more than a year in order that these parties might be under observation, and also that any further proof which might be found might be introduced; and at the conclusion of this period, the case was again reopened for proof and there was no proof, save only the stipulation of the respective attorneys of record to the effect that the life and conduct of petitioner and his wife during the interim was in all respects proper. *Page 121
The parties and witnesses were before the court, who, it seems, took extraordinary care to arrive at a proper conclusion, and he found that the petitioner and his wife were fit and proper persons to have, and should have, the custody of these children. It is idle for this court to assume in the circumstances that it has a better insight into the facts than the trial court had.
I am unable to follow the reasoning of the majority opinion to the effect that this father should be deprived of the custody of his children because he lives in the country in a two-room house and the grandparents live in town in a little better house. It perhaps is unfortunate that he, like a great many others, has not a better house, but it certainly is not for us to say what he must have, and to undertake to lay down a standard of living for him before he will be allowed the custody of his own children, when this record abundantly shows, as was found by the trial court, that he is a fit and proper person to have them. All the testimony is to the effect that since January, 1924, he has been sober and industrious and amply able and willing to properly provide for his children. Of course, the welfare of the children should be and will be considered in all cases of this kind, but first right of the parent to have and to hold his own is not to be disregarded. Were it otherwise, a wealthy relative might conclude that, because his less fortunate kinsman was unable to furnish his children a large and commodious home within which to live and to give them other advantages, he would go into court and obtain the custody of the children because he could provide them with greater advantages. Such a rule, of course, would not be sanctioned by any court, but, if I interpret the majority opinion correctly, it certainly leads far in that direction. No parent should ever be deprived of the custody of his own children unless it clearly appears from the evidence that he is wholly unfit or unable or unwilling to support and maintain them. A wide discretion is necessarily imposed upon a trial judge in matters of this kind.
I concede that prior to the second marriage of the father in January, 1924, this record discloses some improper and immoral conduct on his part, and I do not want to be understood as approving or condoning such conduct. However, a careful examination of the record discloses no evidence whatever of any improper conduct on the part of this father from January, 1924, up to the time judgment was rendered herein by the trial court in July, 1926, but, on the contrary, as hereinbefore pointed out, there are many witnesses who testified that petitioner is a steady, industrious farmer, and associates with and is accepted by the best people of his neighborhood; that he attends religious services, and, without exception, these witnesses bring no evil report as to him or his wife since marrying. So much proof was offered as to the correct life of petitioner and his wife since their marriage that the court acquiesced in the suggestion that the introduction of further proof along that line was unnecessary. The petitioner's witnesses are also of one opinion, that he is not only able, but a proper person to have the care and custody of his children.
The learned trial judge in this case has graced the district bench of this state for a number of years, is a man of mature years, and has had a wide experience, and doubtless has had to determine the very question here presented in numerous other cases of this character. In my judgment, he has correctly interpreted the law involved herein, and the facts as disclosed by the record abundantly sustain his findings, and I am therefore not willing to disturb the same.
Unless we can say that the judgment of the trial court is clearly against the weight of the evidence, it is our duty, under the well-established rules of this court, to affirm the judgment. The judgment of the trial court, in my opinion, is not only not against the clear weight of the evidence, but is strongly supported by it, and the record fails to disclose any abuse of discretion or manifest error on the part of the trial court, and the judgment should, therefore, in my opinion, be affirmed.