The writ of error herein was under the statute allowed and taken to an order awarding the care and custody of Irene Busbee, an infant female child about four years of age, to its maternal grand parents with privileges to the child’s father to have her “in his home two days and nights in succession, once in every two weeks during the time this order is in force,” the order providing further that the father “and his children, brothers and sister of the said Irene Busbfee, be permitted at all reasonable times to visit the said Irene in the home of the” grandparents; and that the grand parents “teach the said Irene Busbee to recognize. Andrew Busbee as its father, and also to love, honor and respect him as her father, and also to love its brothers and sister who are now with the petitioner,” the father of Irene.
It appears that Irene’s mother died at Irene’s birth; and that when three days old Irene was by her father committed to the care of her maternal grand parents until he could otherwise provide for her proper .care. .. The father and his three older children now live-with his parents and the father is able to properly care for Irene *325with the assistance of his parents.. The evidence indicates that the present home of the father is a proper place for, the child and that the conditions at the home of the child’s maternal grand parents is not so desirable, though such grand parents are attached to Irene.
The provisions of the order have regard for family considerations ; .but they do not accord to the father all the rights he is entitled to under the law as it exists in this State. . , ■ ° ■
At common law the father has the paramount right to the custody and control of his legitimate minor children, subject only to lawful regulations for the benefit of the children. Porter v. Porter, 60 Fla. 407, 53 South. Rep. 546; Hernandez v. Thomas, 50 Fla. 522, 39 South. Rep. 641; Miller v. Miller, 38 Fla. 227, 20 South. Rep. 989.
In this case the legal rights of the father not having-been relinquished or forfeited, and his ability to take proper care of the child appearing, the custody should be awarded to him on the showing made.
Eeversed.
Browne, O. J. and Taylor and Ellis, J. J., concur. West, J., dissents.