The Legislature of 1921 passed an act providing, where the husband and wife are living apart, that there shall be no preference between them as to the custody of their children, but that in each case the welfare of the child must be considered first in determining the custody of such child.
Under this statute the chancellor must keep in view primarily the welfare of the child, and, in case of divorce or separation of the father and mother, will confidents custody to the parent most suitable therefor, as the right of each to its custody is of equal dignity. Jackson v. Jackson, 151 Ark. 9.
It follows that the father has no preferential right to the custody, as contended for by his counsel.. In the instant case both the father and mother are of good moral character and love the child. The child is not yet six years of age, and is at that tender age where he requires the attention which a mother can better bestow upon him. In cases like this the custody of the child is not awarded for the purpose of gratifying the feelings of either parent or with any idea of punishing or rewarding either parent. The fitness of the respective parties Of this suit to care for the child is not challenged.
It is urged that the grandmother loyes the child, and is better able to care for him because she is not engaged in any work which, takes her from home, while, on the other hand, the mother of the child, is engaged at work and is away from home during the day. In answer to this it may be said that the child will, soon be of school age and will be at school during most of the day. Besides this, while she is at work he will be looked after by the sister of his mother, or his grandmother • on his mother’s side; and the mother stated that she would quit work, if necessary, to look after her child. If she should neglect the child, or if her condition or situation in life should be changed- so as to make it to the best interest of the child, his custody could at any time be transferred to his father.
Therefore, considering all the surrounding circumstances, it cannot be said that the finding of the chancellor on the facts and his award of the custody of the child is against the preponderance of the evidence and should be disturbed on appeal.
Therefore the decree will be affirmed.-