(dissenting).
This is a very unusual case in which two different district judges participated at different times. The first judgment gave the custody of the child to the mother with the right of visitation by the father, and the second judge, at a later date, gave the custody of the child to the paternal grandparents.
After custody of the child was given to the mother in the first instance, the mother remarried a resident of California who was the father of two children; one of said children, a boy, lived with the father and was about the same age as the child in question.
I am mindful of the fact that legally the mother has the first right to the child; however, the best intérest of the child must be considered at all times..
This case is typical of the evils of divorce when children are involved. I am quite confident from the record that the mother and both grandparents are fine outstanding people.
The case presents the issue that the child in question was born in Coal County, and has spent practically all of her life there. All of her friends are there. At the time of the last trial she was eleven years of age, and during the trial, she stated to the trial court that she wanted to' stay with her grandmother and grandfather. This statement, no doubt, greatly influenced the judgment of the trial court.
At the present time the child is sixteen years of age. She has been goihg to church and Sunday school in Coalgate and has been attending the public schools there. She has been taking piano lessons, and, no doubt, she is now attending, high school. I doubt very much if it would be to the best interest of this young lady to take her out of school in the middle of a term, especially at her age, and force her, against her will, to live in California, away from her friends, and with' a stepfather and stepbrother of her age. There is no doubt but what she is getting excellent care under the custody of' her grandparents. The record shows that they are financially able to send her to any college of her choosing.
In my opinion, this young lady, under all the circumstances of the case, should be permitted a choice as to her care and custody. With this thought in mind, I believe, under the reversal of the judgment of the majority opinion, it would be proper to give this young lady an opportunity to appear before the present (new and third) district judge, so that he can determine what would be best fqr her interest and welfare, after taking into consideration her present desire in the matter.
This court has held many times that in the determination of a minor child the right of a parent to the custody of such minor child is of great importance in determining right of custody, but it is not an absolute right and is qualified by consideration affecting the welfare of the child. Osburn v. Roberts, 197 Old. 206, 169 P.2d 293.
We have also held that in such matters of custody the child’s own wishes and choice should be consulted and given great weight, if the child be of an age and capacity to form a rational judgment, Garlin v. Garlin, 154 Okl. 230, 7 P.2d 463.
Since I am of the opinion, that under all of the facts and circumstances, of the case, this young lady should have an opportunity at this time to present her wishes as to her custody, I -respectfully dissent.
JOHNSON, V. C. J., concurs.