(dissenting).
We dissent from the majority opinion for the reason that it is our view the established law in child custody cases as enunciated by this court in several previous decisions is being misconstrued to justify the conclusion reached; furthermore, the facts recited, particularly the previous relationship between Clifford and his children, are likewise being strained to serve the same end.
Samuel K. Clifford and Constance V. Brooks were married at Safford, Arizona, on May 3, 1942. Two children were born *269as issue, namely, Jacqueline Clifford, born May 30, 1943, and Marrie Gretchen Clifford, born August 8, 1945. Clifford was in the military service at the time of his marriage and remained in such service until June of 1947. On February 2, 1946, a divorce was granted and Constance V. Clifford was awarded the care and custody of the two minor children.
In October, 1946, Constance V. Clifford married R. Reid Woodford, and two children have been born as issue. Soon after the marriage they moved to Tucson, Arizona, where they lived until 1950 and finally moved to Phoenix, Arizona.
In August, 1946, Samuel K. Clifford married Charlotte Lindsay and three children have been born as issue.
After the untimely death of Constance V. Woodford on November 4, 1956, this matter was before this court in the case of Woodford v. Superior Court, 82 Ariz. 181, 309 P.2d 973, resulting from a purported modification of the divorce decree, transferring the legal custody of the two minor children after the death of Mrs. Woodford, to 'Clifford. The late Justice LaPrade, speaking for a unanimous court, held that upon the death of a party who holds legal custody pursuant to a divorce decree, the right of legal custody automatically inures to the surviving parent, and that such custody continues until it is shown that such survivor is unfit to assume the responsibilities inherent to parenthood.
We also held in the recent case of Arizona State Department of Public Welfare v. Barlow, 80 Ariz. 249, 296 P.2d 298, 300:
“ * * * Because the child has attained a favored, beneficent status in our social and legal systems does not detract from the well-settled rule that the right of parents to the custody of minor children is both a natural and a legal right. Harper v. Tipple, 21 Ariz. 41, 184 P. 1005; In re Winn, 48 Ariz. 529, 63 P.2d 198. * * * that ‘no court can, for any but the gravest reasons, transfer a child from its natural parent to any other person’.”
It has long been the settled law in this state that the party seeking to deprive or withhold a child from its natural parents must affirmatively establish the incompetency and delinquency of the parent as an unfit person to have the custody of the child and further so establish that it is not for the best interest and welfare of the child for the parent to retain custody. Arizona State Department of Public Welfare v. Barlow, supra; and Harper v. Tipple, supra.
The appellant, the natural father of the children, contends that the finding made by the trial court wherein it stated
“Nothing herein in any way reflects adversely upon the character, the morals or the fine home and family of Mr. and Mrs. Clifford.”
*270is a finding that appellant is not an unfit person to have the custody and control of his minor children; and that before the court can deprive the natural father of his right to the children’s custody and give them to a stranger, there must be a finding that the father is an unfit person to have the custody of his children. We agree with this contention. The right of a parent to the care and custody of a child cannot be taken away merely because the court (either trial or appellate) may believe that some third person can give the child better care and greater protection. One of the natural rights incident to parenthood, a right supported by law and sound public policy, is the right to care and custody of a minor child, and this right can only be taken away from or denied a parent upon proof that the parent is unfit to have such care and custody. Ex parte White, 54 Cal.App.2d 637, 129 P.2d 706; Arizona State Department of Public Welfare v. Barlow, supra, and Harper v. Tipple, supra.
The majority opinion holds that Wood-ford has to only show by a preponderance of the evidence that Clifford is not a fit person to have the custody of his children. We do not believe that this is a correct statement of the law under the general rule or the decided cases of this state. We believe that the burden of proof on a third person seeking to deprive a parent of his children is much greater than a mere preponderance of the evidence.
The rule is well stated in a recent case of State ex rel. Nelson v. Whaley, 246 Minn. 535, 75 N.W.2d 786, 792, wherein the court said:
“ * * * In order to justify depriving a parent of the custody of a child in favor of third persons there must be a grave reason growing out of neglect, abandonment, incapacity, moral delinquency, instability of character, or inability to furnish the child with needed care. The reasons must be ‘real, cogent, weighty, strong, powerful, serious, or grave.’ 67 C.J.S. Parent and Child § 12.”
and in the case of In re Sweet, Okl., 317 P.2d 231, 235 it was said:
“* * * it is presumed, in the absence of a strong and clear showing to the contrary, that their best interests are served by letting them remain with their parents.
******
“* * * To justify the courts in depriving parents of the care and custody of their own children, the parents’ special unfitness must be shown by evidence that is clear and conclusive and sufficient to make it appear that the necessity for doing so is imperative.” (Emphasis supplied.)
To the same effect is the holding in the case of In re Smith’s Guardianship, 147 Cal.App.2d 686, 306 P.2d 86, 91, wherein *271that court said “The burden on the one claiming unfitness of a parent is a heavy one.”
This court, in Harper v. Tipple, supra [21 Ariz. 41, 184 P. 1007], decided many years ago that the natural right of the parent to the custody and care of his child should not be invaded except upon a clear showing of delinquency on the part of the parent, and to use the language of the court in that case:
“ * * * The breaking of the ties that bind father and child to each other can never be justified without the most solemn and substantial reasons, established by plain proof. In any form of proceeding the sundering of such ties should always be approached by the courts 'with great caution and with a deep spnse of responsibility.’ * * * ” (Emphasis supplied.)
In the very recent Barlow case, supra, we cited with approval the case of Hale v. Henderson, 210 Ga. 273, 79 S.E.2d 804, which holds that the burden of proof in such cases is by clear and strong proof; we also in the Barlow case approved the decision in Ex parte De Castro, 238 Mo. App. 1011, 190 S.W.2d 949, 959, wherein that court used this language:
“ * * * in a contest between the parent and some third person, is not to be denied the parent unless it is made manifest to the court that the parent, for some strong and cogent reason, is unfit or incompetent to have his child, so that the welfare of the child itself demands a different disposition.” (Emphasis supplied.)
We are, therefore, committed to the rule that the burden of proof in cases where a third person is seeking to deprive a parent of his children is much greater than a mere preponderance of the evidence, and requires a higher degree of proof. It must be such proof that is clear, conclusive, strong, cogent and grave.
The appellee, in an attempt to prove that the natural father was an unfit person to have the custody of the minor children and to establish his own fitness, which was never disputed, called thirty-four witnesses in a hearing that lasted six days, and with over seven hundred pages of testimony there is not one word uttered by any witness that is detrimental or damaging to the character or reputation of the natural father or his present wife or their present home. These facts alone must have prompted the trial court to make the finding that in refusing to give the children to the natural parent, it in no way reflected adversely upon the character, the morals or the fine home and family of Mr. and Clifford. This is not a finding or unfitness of Mr. Clifford.
In the case of Harper v. Tipple, supra, we held that the evidence must be considered in the light of the rule that it will be assumed that a father is competent to *272have the care and custody of his child, in the absence of any affirmative showing to the contrary, and the law further presumes, until otherwise shown, that it is to the best interest and welfare of children to be in the custody of their parent. 67 C.J.S. Parent and Child § 12.
With these rules in mind, what does the evidence show? That at the time of the divorce of Constance Brooks Clifford in February, 1946, Clifford signed a waiver of appearance, consenting and agreeing to pay the sum of $150 per month for the support of his daughters, and this amount was paid at all times with the exception of three or four months when Clifford reduced it to sixty dollars per month for the reason that after his discharge from the 'service as an officer in the Air Force his income was less. In any event, in March, 1948, he had paid his former wife the full amount ordered by the judgment of divorce, and at that time his former wife agreed that the court could order a reduction in the amount of support to the sum of seventy-five dollars per month. ¡This amount was paid from 1948 until the death of Mrs. Woodford in 1956, with the exception that two payments were delinquent at that time and were later refused by appellee. Can the appellant be deemed an unfit father where for a period of over ten years he paid the monthly support payments in the amounts agreed to by his former wife and as fixed by the courts? We do not believe that a father who has complied with a court order in the payments for the support of his minor children, even though at times he became in arrears, should be deprived of his children and declared to be unfit to have their custody.
As we read the record before the trial court it shows that from the time of Clifford’s discharge from the military service to the present time he has always been interested in his children and visited with them whenever possible. While there is some conflict in the evidence concerning his visiting with the children from the time of his divorce in February, 1946, until his marriage to his present wife in August 1946, it must be remembered that his fitness to have the custody of his children must be determined as of the time of the hearing of the petition for guardianship. McVey v. Chester, Okl., 288 P.2d 740; Guardianship of Willis, 123 Cal.App.2d 446, 266 P.2d 944; In re McCoy’s Guardianship, 46 Cal.App.2d 494, 116 P.2d 103.
The evidence shows that Clifford was in the military service from 1941 until his discharge in June, 1947, and he resided in Safford, Arizona, from his discharge until the spring of 1951, when he moved with his family to Colorado to enter the cattle business. Clifford testified that from the time of his divorce until the marriage to' his present wife that he was not in Safford, and hence could not readily visit his children.
*273After his discharge in 1947 and until 1951, while residing in Safford, Arizona, Clifford would see his children at least two or three times a month. He took pictures of' his children on twelve different occasions, which were introduced in evidence, including about three hundred feet of motion pictures, when they visited with him. That on at least twelve other occasions they visited with him at his home in Safford during this period. It was during these visits that Charlotte became acquainted with the children and learned to love them. There is little doubt that the children loved their father during this time as the record shows:
“Q. Will you [Charlotte] describe to the Court the reaction as you saw it grow and develop as they visited in your home?
“A. They [the children] were always delighted to see Kemp, it was a time of excitement I believe. Little girls like to be pretty for their father and they enjoyed showing off their best talents for him and open affection.”
In 1952 the two children visited with their father and his wife, Charlotte, in Colorado, and remained with them for two months. During this time they became part of the family, attended church, took part in social functions and parties. The two-months visit can be best described by Gretchen’s own words “We had a wonderful time”, and by Jacqueline when she said she had pleasant memories of the time spent in her father’s home in Colorado.
Both Clifford and his wife, Charlotte, testified that Clifford always sent Christmas gifts to the children; however, it appears that it was the custom of the Clifford family not to remember each other with gifts for birthdays, but to observe it with a dinner or birthday cake. This explains why the children were not remembered by birthday gifts.
Since the death of Mrs. Woodford in November, 1956, Mr. Woodford has necessarily employed housekeepers to *operate his home and care for the children. One housekeeper remained about five months and the second housekeeper, at the time of the trial, had been there about six weeks.
The record shows that Woodford’s care of the children for many years was excellent and he deserves unstinted praise for his treatment of children not his own; nevertheless, he is, legally speaking, a “stranger” to the family. But can it be said that it is for the best interest and welfare of these children to remain in a home where only a housekeeper is in charge? Or would it be for their best interest and welfare to be in a home with the natural father and a loving stepmother, and have all the advantages of a normal home?
*274The evidence shows without contradiction that the present Mrs. Clifford is a woman of very high character, that she graduated from college and had classes in child psychology and family relations. The evidence further shows that Mrs. Clifford is an outstanding mother and housekeeper, that she has special talents as a seamstress and decorator, that she can and does give piano lessons, and that the family regularly attend religious services and provide religious training in the home.
It certainly requires very little imagination to understand that the children would he better cared for in all respects in a home with their own father and a woman who sincerely loves them and wants the privilege of giving them the love and care they need and require.
By the majority opinion Clifford is “branded” as an unfit father to have the custody of these children. This finding of unfitness necessarily implies that Clifford is unfit to have the custody of and care for his other children, a cruel implication that is not supported by the record. As a matter of fact, the record shows without contradiction that Clifford’s relationship with his wife and present children is one of great affection and mutual love.
We do not believe that the appellee Woodford carried the burden of proof with sufficient evidence to make a clear, conclusive and strong showing of delinquency and unfitness on the part of Clifford, and that the evidence did not establish by plain proof any solemn or substantial reasons to deprive the father of the care and custody of these children.
It is, therefore, our considered opinion that the trial court was not justified, and abused his discretionary powers, in issuing letters of guardianship to appellee and in quashing the writ of habeas corpus. We would reverse the judgment of the lower court with directions to grant' custody to the natural father.