Busbee v. Weeks

West, J., dissenting.

Other things being equal, the right of the father to the custody of his minor child is paramount, but this right may be qualified by considerations for the benefit and welfare of the minor child. In this case the infant, a girl child four years old, three days after her birth and upon the death of her mother, was *326committed to the care of her maternal grandmother. She is in the home in which her mother was reared. Strong ties of affection and attachment for her have naturally been formed by those who have reared her. In my view the condition of the infant would not be benefitted by transferring her tó the custody of her father where he and his three other children reside with his parents. On the contrary, I think that the infant’s welfare will be better subserved by leaving her for the present where she may have the nurture and care of the one who in her life occupies the position of mother.

The order appealed from is “until the further, order of this court, or some other court of competent jurisdiction.” It accords the father the rights which he possesses as father of the child, but recognizes and gives effect to the rule that the welfare of the infant is a cardinal consideration in such cases. Robertson v. Bass, 52 Fla. 420, 42 South. Rep. 242, and cases cited in the opinion.

It may be that at some future time it will be proper to award the custody of the child to her father, but under the circumstances of this case I am unable to concur in the view which holds the order of the Circuit Judge reversible error.