Joseph Thurston Smith commenced a divorce action against his wife, Alyce M. Smith. The divorce was granted to the wife upon her counterclaim. He appeals only from that portion of the decree granting her the custody of their minor children. All but one of the six minor children were 10 years of age or over, and these five children expressed a preference to remain with the father, the appellant herein.
Under Section 30-3-5, U.C.A.1953, in divorce proceedings, where neither party is found to be an immoral or unfit person to have the custody of the children, must the children more than 10 years of age be awarded to the custody of the'parent which is chosen by such child? In cases where the child is not entitled to make such choice *37and child custody cases generally, we have emphasized that the best interest of the child is controlling.1 Judges often disagree on what will be for the best interest of a child and the child’s reaction to the award and many other factors may have a hearing on that question.
The above section provides “ * * * that if any of the children have attained the age of ten years and are of sound mind, such children shall have the privilege of selecting the parent to which they will attach themselves.” In Dorsey v. Dorsey,2 speaking of this provision, we said: “[I]n case the parent the child selects is found to he an immoral or unfit person to have the care and custody of the child, and the court finds it to he for the best interests of the child, that the court may, nevertheless, determine the child’s custody otherwise.” We have found no case to the contrary, and we think this is a correct statement of the law. This requires a finding that the parent selected he an immoral or unfit person; otherwise, the child must he awarded to the parent chosen. It is unthinkable that a court would award a child to the custody of an immoral or unfit parent even though the statute does not expressly provide such an exception. However, a finding that the best interest of the child réquirés that it he placed in other custody is not sufficient to justify the court in placing the child elsewhere.
Case reversed with directions that the children he awarded to the father, and that the decree conform to the views herein expressed. No costs awarded.
McDonough and callister, jj., concur.. Walton v. Coffman, 110 Utah 1, 169 P.2d 97; Anderson v. Anderson, 110 Utah 300, 172 P.2d 132; Sampsell v. Holt, 115 Utah 73, 202 P.2d 550; Smith v. Smith, 1 Utah 2d 75, 262 P.2d 283; Steiger v. Steiger, 4 Utah 2d 273, 293 P.2d 418; Johnson v. Johnson, 7 Utah 2d 263, 323 P.2d 16; Briggs v. Briggs, 111 Utah 418, 181 P.2d 223.
. Dorsey v. Dorsey, 52 Utah 73, 172 P. 722.