The father is regarded as the head of the family, and the law commits the children to his charge, in preference to the claims of the mother, or any other person, and his. right to their custody may be forfeited by misconduct, or lost by his misfortunes; anid as has been heretofore held, when he asserts bis right to their custody, by habeas corpus, the court may exercise a discretion for the present and future welfare and interests of the infants, and leave them in the custody of the mother or some other person, in pref- . erence to the father. — Ex parte Boaz, 31 Ala. 427.
This discretion is not to be exercised' arbitrarily, but always with a view to the best interests of the children. The character, calling and condition of the father will be considered, to ascertain if he is suitable or unsuitable, or able or unable to properly care for his children, and in determining the question, the court may very properly consult the children, having sufficient judgment, Avhether they prefer, for any good reasons, to return or not to him. Their feelings, attachments, preferences and contentment, are, within proper limitations, proper subjects of inquiry. Mental capacity, and not age, is the criterion as to' whether the infant has sufficient judgment to chose for itself. — Brinster v. Compton, 68 Ala. 300; 9 Am. & Eng. Ency. Law (1st ed.), 245-6.
Having reference to the calling, capacity, disposition and character of the petitioner, as tending to show his unfitness to take charge of the child, as shown by the' legal evidence introduced on the trial, the capacity and superior qualifications of the defendant, Mrs. Reed, in custody.of the child, the care, attention and advantages *321she is bestowing- on him, and is anxious to continue to furnish as. well as to the preference of the child., — nine, years old, — as made known by him to the judge o:f probate, wlm examined him in reference to the matter, we are unable to conclude that the probate court erred in- denying the application of the petitioner, and in remanding the infant to> the custody of the defendant.
Affirmed.