dissenting
This appeal involves the difficult problem of the custody of Kevin Clark, three years and three months old, the son of a couple divorced because of the adultery of the wife. At the time of the hearing and the entry of the final d,ecree on January 31, 1967, the child was living with his mother, the divorced wife. In her household she was also caring for an illegitimate son, Jason, born to her on June 7, 1965 and then less than two years old.
The husband based his claim to the custody of Kevin, his son, on the adultery of the wife and the fact that if custody were allowed to remain with her he must live in his mother’s household in the shadow of his illegitimate half brother, Jason.
The evidence shows that the divorced husband and wife are gainfully employed and either will be financially able to care for their son, Kevin. The undisputed evidence is that the divorced wife maintains a neat, clean and comfortable .home where both children are properly taken care of and are happy. Indeed, the husband’s father and mother so testified. It also appears that with commendable sympathy and compassion the husband’s parents took this wayward mother and her illegitimate child into their home and allowed them to remain there until the mother could find living quarters for her little family.
After hearing and seeing the witnesses, the trial court announced that the best interests of Kevin required that he “remain with his mother” and awarded custody to her.
The majority opinion overturns that finding, with the statement that “the evidence does not support the chancellor’s finding that the best interests of Kevin require that custody remain with the mother.” *397No evidence is cited to refute the opposite conclusion of the trial court.
I agree that the adultery of this young mother of itself should not deprive her of the custody of her child, Kevin. Certainly the husband, who admitted that he was the father of their son conceived before their marriage, is in no position to “cast a stone at her.” Moreover, we are not here concerned with the punishment of the wayward wife. Our sole concern is the consideration of the best interests of Kevin.
I do not agree with the clear implication that the fact that Kevin must live with his illegitimate half brother, Jason, requires that this home be broken up and this little three-year-old boy, Kevin, be deprived of the love and care of his mother. Nor am I willing to join in a decree which will brand Jason, the illegitimate child, as an untouchable outcast whose mere presence in his mother’s household makes it an unfit place for her to rear her legitimate child. There is no evidence whatsoever to support this view.
The implication that the presence of an illegitimate child in a household makes it an unfit place in which to rear legitimate children may have far-reaching consequences. Are such households to be broken up because unfit? What of many orphanages which habitually care for legitimate and illegitimate children together?
Moreover, it appears that the husband’s parents are employed, and that if the custody of Kevin is awarded the husband, these grandparents with the assistance of a babysitter will be expected to look after the child. Thus there will be no change from the existing arrangement other than at nighttime and on weekends he will be in the home of his grandparents instead of the home of his mother. In this situation, the child will be deprived of the love and attention of his mother and the mother, whose devotion to him is attested by all of the witnesses, will be deprived of her infant son. Both mother and child will be punished, which surely is not the desired end of a custody decree.
The only alternative the husband suggests is the possibility of his remarriage, which he says is not imminent, and the possibility that his second wife might want the child. He also suggests that if he does not remarry and “as Kevin gets old enough to be able to take care of himself,” he will bring the child to live with him. This seems to me a very uncertain and unsatisfactory prospect for an infant. Certainly it is not a proper substitute for the natural mother in whose care he has been since birth.
*398The present arrangement regarding the custody of this child has been a satisfactory one. No bitterness or animosity of the parties toward each other is shown by the record. The mother and grandparents visit each other frequently in their respective homes. The father and grandparents now enjoy full and free visitation rights with Kevin. This arrangement will undoubtedly be continued. The matter of custody will remain in the breast of the trial court. If at some future time, and as a result of a change in circumstances or in the marital status of either or both parties, a different arrangement is indicated for Kevin, the court in its discretion is free to act.
I would affirm the decree appealed from.
Harrison, J., joins in this dissent.