dissenting:
Though I agree that both points of the syllabus enunciate correct principles of law I challenge their application to the facts of this case and I dissent from the decision of *739the majority of the Court in affirming the final decree of the circuit court in so far as it awards the custody of the infant daughter of the plaintiff to the defendants.
From the evidence it is clear that the defendants, one of whom is the elder sister of the plaintiff and the other of whom is the husband of the sister of the plaintiff, have no right to the custody of the child which should be permitted to overcome or surmount the natural right of the plaintiff to have the custody of her daughter of the tender age of three and one half years at the time of the hearing of this case in January, 1954. By one of the provisions of the final decree of the circuit court it set aside and held for naught its prior order permitting the defendants to adopt the child. To the extent that the final decree vacated the former order of adoption the action of the circuit court was correct and proper; and that provision of the final decree effectively rejected and denied any right to the custody of the child claimed by the defendants by virtue of the defective adoption proceeding, instituted by them in the spring of 1952, while the plaintiff was residing in Cincinnati, which because of lack of proper notice to the plaintiff the circuit court properly dismissed.
Though the name of the father of the plaintiff’s illegitimate daughter appears in the evidence there is mo proof to indicate his whereabouts since the birth of the child in September, 1950, or that he entertains or advances any claim to the custody of the child as its father. In this situation the right of the plaintiff, the mother of the child, to its custody, though not absolute, is a natural right which the circuit court should have recognized and enforced in this proceeding against any claim of the defendants. The evidence fails to show that the plaintiff at any time entered into any agreement by which she relinquished or transferred to the defendants, or either of them, her right to the custody of her infant daughter or that she lost her right by abandoning or deserting the child. The evidence shows affirmatively that she repeatedly refused to consent to its adoption by the defendants.
It appears that for some time before her child was born, *740and. after its birth until the marriage of the plaintiff on April 12,1952, in Cincinnati, where she became acquainted with her husband, the plaintiff was guilty of indiscretions and highly questionable and improper moral conduct and of some neglect of and indifference toward her child, such as her trip to> Chicago with another girl and two young men, where she stayed for a period of several weeks, the statement attributed to her that she became pregnant after the birth of the child and before her marriage, which she emphatically denied, and her failure to furnish her child any motherly care or financial support. The harsh and unfortunate circumstances with which she was confronted during that period, however, constitute, at least to some extent, an excuse for these shortcomings. In the absence of any proof to show that she gave birth to a child or experienced a miscarriage during the time between the birth of her infant daughter in September, 1950, and her marriage in April, 1952, one of which events, except in the rare instances in which there may be a calcification of a fetus in the body of the mother, must necessarily have occurred if she was in fact pregnant, the accusation of her pregnancy is entirely unsupported. She denied that during this same period she had sexual intercourse with any man and there is no proof to controvert her testimony on that subject.
It further appears that almost immediately after the birth of her child at the home of her parents at Pemberton, in Raleigh County, she was forced by her father to leave the home of her parents and to go with her child to live in the modernly unequipped home of the defendants on their small farm in a somewhat remote section of Fayette County about two miles distant from the town of Gate-wood in that county. There, according to the testimony of the plaintiff, though the defendants properly cared for and treated the child, their treatment of the plaintiff caused her to leave for the purpose of earning a livelihood for herself in an endeavor ultimately to obtain enough money to enable her to support herself and her child suitably at some other place.
*741It is reasonable to infer that, while the plaintiff was in Chicago and Cincinnati and absent from the home of the defendants, where of necessity she' left the child, she intended to return and take it when she was able to furnish it with a suitable place to live. This she did in September, 1952, about five months after her marriage, when she oame to the home of the defendants for that purpose; and at that time her effort to obtain the custody of her child was thwarted by a court order in a proceeding instituted by the defendants of which the plaintiff received no valid notice.
Regardless, however, of the indiscretions and the neglectful conduct of the plaintiff, during the period which elapsed between the birth of her child on September 4, 1950, and the marriage of the plaintiff on April 12, 1952, since her marriage the plaintiff has reformed, has become, and now is, a person of good moral character and is living a settled and normal life in a respectable neighborhood in the City of Cincinnati, Ohio. The evidence establishes these facts and from the evidence the circuit court found, and stated in its opinion, filed as part of the record in this proceeding, that the “plaintiff has become an estimable young woman” who is “married to a fine young man”. Thus it clearly appears that at the time the plaintiff instituted this proceeding to obtain the custody of her child she was, as its mother and natural guardian, a fit, proper and suitable person to have the custody of and to rear her infant daughter of tender years. In Pierce v. Jeffries, 103 W. Va. 410, 137 S. E. 651, 51 A. L. R. 1502, this Court said: “In order to separate a child from its parent on the ground of the latter’s unfitness, there must be cogent and convincing proof of such fact.”
The right of a parent to the custody of his or her child, though not absolute, is founded on natural law and arises because the child is his or hers to care for and rear. State ex rel. Lipscomb v. Joplin, 131 W. Va. 302, 47 S. E. 2d 221; State ex rel. Bennett v. Anderson, 129 W. Va. 671, 41 S. E. 2d 241; Straughan v. Straughan, 115 W. Va. 639, 177 S. E. 771; Connor v. Harris, 100 W. Va. 313, 130 S. E. 281; Cun*742ningham v. Barnes, 37 W. Va. 746, 17 S. E. 308, 38 Am. St. Rep. 57. This right of a parent will be respected when it has not been transferred or abandoned. Settle v. Settle, 117 W. Va. 476, 185 S. E. 859; Straughan v. Straughan, 115 W. Va. 639, 177 S. E. 771; Pierce v. Jeffries, 103 W. Va. 410, 137 S. E. 651, 51 A. L. R. 1502; Buseman v. Buseman, 83 W. Va. 496, 98 S. E. 574; Cunningham v. Barnes, 37 W. Va. 746, 17 S. E. 308, 38 Am. St. Rep. 57; Green v. Campbell, 35 W. Va. 698, 14 S. E. 212; State ex rel. Neider v. Reuff, 29 W. Va. 571, 2 S. E. 801, 6 Am. St. Rep. 676; Rust v. Vanvacter, 9 W. Va. 600. In the case of a young child the law favors the mother if she is a fit person. Settle v. Settle, 117 W. Va. 476, 185 S. E. 859; Beaumont v. Beaumont, 106 W. Va. 622, 146 S. E. 618; Stapler v. Leamons, 101 W. Va. 235, 132 S. E. 507; Norman v. Norman, 88 W. Va. 640, 107 S. E. 407; Nestor v. Nestor, 83 W. Va. 590, 98 S. E. 807; Dawson v. Dawson, 57 W. Va. 520, 50 S. E. 613, 110 Am. St. Rep. 800; Cariens v. Cariens, 50 W. Va. 113, 40 S. E. 335, 55 L. R. A. 930. Notwithstanding the conclusion of the circuit court that the plaintiff is a suitable and proper person to> have the custody of her child, it found that the welfare of the child would not be promoted by awarding its custody to her and, on that ground alone, the circuit court refused to award the plaintiff the custody of the child. This finding of the court is against the clear preponderance of the evidence and is clearly wrong.
The evidence shows that the plaintiff and her husband, who desires his wife to have the custody of the child, occupy and maintain a suitable home in a respectable section in the City of Cincinnati in which the child could and would 'be properly cared for, reared and educated. They live in an urban community where the many advantages which such a neighborhood affords are readily available. The home of the plaintiff and her husband, in which they desire to raise and care for the child, is located in a community in which there are excellent schools and numerous churches which are accessible to residents of that area. The educational facilities and the opportunities for religious training in the community in which the plaintiff *743and her husband now reside are decidedly superior to those of the rural community in which the defendants live. The plaintiff and her husband are several years younger than the defendants. Their home is in a modern apartment building and the plaintiff’s husband is a person of good moral character, is industrious and regularly employed, and earns in wages approximately eighty dollars per week. He desires, and is financially able, to support the child and to give her the advantages of a satisfactory standard of living. The defendants, who are respectable people, have affection for the child, and are physically and financially able to care for and support it, live in a four room farm house which is not equipped with many present day conveniences such as modern heating, lighting and bathing facilities. Their home is located in a rural community and if they retain their present custody of the child until she attains school age, she will be required to travel on an unimproved road a distance of about one mile to the main road and to continue to travel on it for a distance of approximately two miles to the small town of Gatewood where the nearest school and church are located. Moreover if the present custody of the child by the defendants continues she will grow to girlhood and young womanhood in a community where her illegitimate birth is known to all her neighbors instead of in a distant urban community in which her mother now resides where that information is not generally known and, if known at all, will likely be quickly forgotten.
In view of the foregoing clearly established facts, the welfare of the child would, in my judgment, be best promoted by an award of the custody of the child to the plaintiff which would enable her to be reared in her new home by her own mother. Though an award of the custody of this little girl to her mother, who is now a nonresident of this State, would result in the removal of the child from this State to a foreign jurisdiction, a court of competent jurisdiction, in this State, has the power to award the custody of an infant to a person who is not a resident of this State and to permit such person to remove the child *744to another state or foreign jurisdiction, and may exercise such power when such an award of custody will serve or promote the welfare of the child. Pugh v. Pugh, 133 W. Va. 501, 56 S. E. 2d 901, 15 A. L. R. 2d 424.
This Court has repeatedly held that in any proceeding involving the custody of an infant the welfare of the child is of paramount and controlling importance and is the polar star by which the discretion of the Court must be guided. Pugh v. Pugh, 133 W. Va. 501, 56 S. E. 2d 901, 15 A. L. R. 2d 424; State ex rel. Lipscomb v. Joplin, 131 W. Va. 302, 47 S. E. 2d 221; Pukas v. Pukas, 129 W. Va. 765, 42 S. E. 2d 11; Harloe v. Harloe, 129 W. Va. 1, 38 S. E. 2d 362; Suter v. Suter, 128 W. Va. 511, 37 S. E. 2d 474; Frame v. Wehn, 120 W. Va. 208, 197 S. E. 524; Arnold v. Arnold, 112 W. Va. 481, 164 S. E. 850; Reynolds v. Reynolds, 109 W. Va. 513, 155 S. E. 652; State ex rel. Cooke v. Williams, 107 W. Va. 450, 148 S. E. 488; State ex rel. Palmer v. Postlethwaite, 106 W. Va. 383, 145 S. E. 738; Connor v. Harris, 100 W. Va. 313, 130 S. E. 281; Boos v. Boos, 93 W. Va. 727, 117 S. E. 616; Buseman v. Buseman, 83 W. Va. 496, 98 S. E. 574; Dawson v. Dawson, 57 W. Va. 520, 50 S. E. 613, 110 Am. St. Rep. 800; Cariens v. Cariens, 50 W. Va. 113, 40 S. E. 335, 55 L. R. A. 930; Cunningham v. Barnes, 37 W. Va. 746, 17 S. E. 308, 38 Am. St. Rep. 57; State ex rel. Neider v. Reuff, 29 W. Va. 751, 2. S. E. 801, 6 Am. St. Rep. 676; Rust v. Vanvacter, 9 W. Va. 600. Under the evidence the circuit court, in awarding the custody of the infant child of the plaintiff to the defendants, has disregarded the welfare of the child and has abused its discretion in awarding the custody of the child to the defendants.
A decree, based on a finding of fact which is against the plain preponderance of the evidence or is clearly wrong, will be reversed. Sturm v. City of St. Albans, 138 W. Va. 911, 78 S. E. 2d 462; Smith v. Smith, 138 W. Va. 388, 76 S. E. 2d 253; McCausland v. Jarrell, 136 W. Va. 569, 68 S. E. 2d 729; Adams v. Ferrell, 135 W. Va. 463, 63 S. E. 2d 840; Tokas v. J. J. Arnold Company, 122 W. Va. 613, 11 S. E. 2d 759; Buskirk v. Bankers Finance Corporation, 121 W. Va. 361, 3 S. E. 2d 450; Pickens v. O’Hara, 120 W. Va. *745751, 200 S. E. 746; Spradling v. Spradling, 118 W. Va. 308, 190 S. E. 537; Gall v. Cowell, 118 W. Va. 263, 190 S. E. 130; Smith v. Pew, 116 W. Va. 734, 183 S. E. 53; Wood v. Snodgrass, 116 W. Va. 538, 182 S. E. 286; Meyers v. Washington Heights Land Company, 107 W. Va. 632, 149 S. E. 819; Blue v. Hazel-Atlas Glass Company, 106 W. Va. 642, 147 S. E. 22; Hendrick v. Jenkins, 104 W. Va. 486, 140 S. E. 483.
For the foregoing reasons I would give recognition to the natural right of the plaintiff to the custody of her child and reverse the decree of the circuit court in so far as it awards the custody of the child to the defendants. I would also award the custody of the child to the plaintiff and assess costs against the defendants.