The general rule relative to the custody of children, and amply sustained by authority, is laid down in the Cyclopedia of Law and Procedure (Vol. 29, p. 1590), as follows: “A parent who is of good character and a proper person to have the custody of the child and reasonably able to provide for it is entitled to the custody as against other persons, although such others *180are much attached to the child and the child is attached to them and prefers to remain with them and they are in all respects suitable to have the custody of the child and able to support and care for it, and even though they are of larger fortune or able to provide for the child more comfortably than the parent, or to care for it better or to give it a better education than the parent can afford. This rule has been applied in favor of a father as against maternal grandparents, á maternal aunt, a paternal aunt and a statutory or official guardian, and in favor of a mother as against paternal grandparents and a maternal grandmother, uncle and aunt.”
When the rule thus enunciated is to be departed from it can only be justified upon the ground that the welfare of the child requires that a different- disposition should be made of its custody. In inquiring as to what course is best to follow for the child’s welfare, the question is not one of the financial condition of the parent or of the third party, but the solicitude of the court is to be exercised in procuring for the child such custody as will insure its. upbringing under proper influences, amid proper surroundings, and with due regard to its mental, physical and moral development. In the case" at bar every one of these elements, as has been disclosed by the testimony, will be fully protected if the child is left in her father’s care. He is a business man of high character and proved integrity, who earns an income sufficient to provide for himself and for his child, with due regard for her comfort. Despite the evidefit animosity displayed towards him on the part of his wife’s relatives, the only question which has been raised as to his conduct towards his child has been upon hearsay evidence that once he struck the child. The learned referee before whom the voluminous testimony in this case was taken has found that during the greater part of his married life the relator treated his wife in a tyrannical and insulting way, and acted in the same way towards his father-in-law and the members of the latter’s family. It is quite true that there is evidence in the record, denied, however, by the -relator, which, if true, would show acts of heartless conduct on his part towards his wife during her long period of illness; but we are -not now concerned with the trial of an *181action for separation based upon charges of cruelty, and the testimony even as to these acts is based largely upon statements.of the deceased wife, whose view of her husband’s conduct towards her may have been colored by her own depressed condition, due to her illness and to her advocacy of the cause of her family as against that of her husband. But even if the relator did act heartlessly towards his wife, that furnishes no reason why he should be deprived of the society of his child (as against whom he is not charged with having committed any such acts), nor why he should not be allowed to bring her up in a manner befitting her station in life. It is conceded by the respondent that the father is by law entitled to the custody of the child, provided he is a fit person, and provided the court finds that such disposition is for the benefit of the infant.
I can find no suggestion in this record for any reason for bringing this case within the exception, save for the reason already assigned, that the relator was cruel towards his wife and lacked in consideration for her, and for the further reason that his father-in-law is richer than he is. It is quite true that the father-in-law has made provision for the child by his will, but that provision is 'revocable at his pleasure,- and I should be inclined to attach more importance to his intentions for the future if he had shown some disposition to confer financial advantage upon the child in the' past. There is nothing in the testimony to show that the child will be better cared for in another household than in the father’s own. The fact that the child has been heretofore living under the care of relator’s sister-in-law was due to the separation of the relator and his wife under conditions which it is unnecessary now to recite. Where the surviving parent is a man of unimpeached character, attached to his child, and able and willing to provide a home for her, amid proper surroundings and with proper opportunities for her training and education, I can see no reason for depriving him of such custody because another relative happens to be in more affluent circumstances than he. A child should not be encouraged in expecting to be brought up amid more luxu- - rious surroundings than those to which the means of her father entitle her, and it would be, in my opinion, no act of kindness to her, nor would it insure her a happier future, to remove her *182from the parental control to that of another whose claim is based on superior financial means. I am, therefore, in favor of modifying the; order appealed from so that, while the child shall remain in the custody of the father there shall be no privilege given to the grandfather or his daughter to take the child to their home once a month for six days or for any other time, but they shall have the right to visit said child at her father’s home for four hours on the last Saturday of each' month.
Laughlin, J., concurred.
Order modified as directed in opinion, with ten dollars costs and disbursements to the appellant, respondent, Robitzek. Order to be settled on notice.