dissenting.
I respectfully dissent.
There is a substantial amount of evidence indicating that the appellant should not be the managing conservator of his children. The record discloses that there were three social studies conducted in this case. These reports are automatically made a part of the appellate record. Wimpey v. Wimpey, 662 S.W.2d 680 (Tex.App.1983, no writ). The trial judge, in her sound discretion, no doubt considered them in determining the issue of proper custody. Two of these social studies cast serious doubt on the more favorable report relied upon by the appellant. The one and only “favorable” social study relied upon in the majority opinion is seriously flawed. According to Abraham P. DeLeon, Supervisor of the Social Services Division in Alamogordo, New Mexico, in his March 27, 1984, report to the Texas Department of Human Resources in San Angelo, “not enough time went into the family in order to know them better,” and “Jan Bennett was a new worker with no experience. She based her study on one interview with the family and children.” Finally, Mr. DeLeon concluded: “I would place more credibility in the results of the second home study done by Ms. Seiler based on reasons stated above.”
Ms. Seiler’s evaluations and conclusions were that “it is very difficult to determine the homelife these children would have if they return to Ruidoso. I see some reason for concern regarding past behavior that is not seen as abusive by this family and was freely related to the caseworker. There is also an indication of what might be considered inflexibility and stringent expectations of themselves and others. All three family members admit to no regrets for anything that has happened in their lives prior to the removal of these children.” Moreover, at least three witnesses, including Mrs. Cooper, testified that the appellant was in the habit of giving unusually harsh punishment to his children. These witnesses testified that they personally observed instances of abusive behavior on the part of the appellant. One of the witnesses related an incident in which the appellant struck one of the children with his closed fist and knocked the child to the ground. Another witness observed the appellant slapping another of his children rather severely as punishment for mischievous conduct. Other evidence indicates that appellant used a modified wood slat from a bed to dispense punishment. Appellant denied any knowledge of the use to which the wood slat was purportedly intended. Appellant further denied that he made the modification. One witness, however, testified that he observed the appellant pick up the wood slat and take one of the children into a room. The witness reported hearing the child screaming shortly thereafter. When the appellant and the child emerged from the room where the punishment took place, the witness observed seeing red marks over the child’s legs. On another occasion, after Mr. Cooper returned the kids to her, Mrs. Cooper discovered large bruises over one of the children. Mrs. Cooper thereupon called the police. Photographs were made of the physical condition of the child and are a part of the record. *814Appellant denies he was the producing cause of the injuries. Some witnesses testified that the children were unusually afraid of their father. Likewise, Mrs. Cooper, and another witness, testified that Mr. Cooper threatened on more than one occasion to “knock Mrs. Cooper’s teeth out.”
Appellant works overseas for thirty-five days and then returns to the United States for thirty-five days. Every person has a choice on how to earn a living. Appellant’s significant absence, however, has an adverse impact on the development of the children. When appellant worked overseas he often left his children with his parents. The record discloses that there was conflicting testimony regarding whether it was in the best interests of the children to have appellant’s parents care for the children in appellant’s absence.
There was other evidence that the appellant left his children with individuals who may have neglected them. For example, the record shows that on one such occasion one of the children returned home with a four by three inch bald spot where hair had been ripped out. Finally, appellant’s own witness, a woman who cared for the children for four months, remarked that she wouldn’t want either parent to be her kid’s parents.
In my judgment, the majority opinion has ignored the fundamental principal that in bench trials, it is the duty of the court to pass on the credibility of the witnesses and the weight to be given the testimony. Smith v. McLin, 632 S.W.2d 390 (Tex.App.1982, writ ref’d n.r.e.); Texas West Oil & Gas Corporation v. El Paso Gas Transportation Company, 631 S.W.2d 521 (Tex.App.1982, no writ). The court, as the trier of fact, may believe a witness although he has been contradicted, and, likewise, it may believe the testimony of one witness and reject the testimony of other witnesses. Smith, supra. The court can accept or reject any portion of a witness’ testimony. Id. Moreover, a trial court’s decision in child custody cases is addressed to the sound discretion of the court, and will not be disturbed on appeal unless there has been a clear abuse of discretion. Fettig v. Fettig, 619 S.W.2d 262 (Tex.Civ.App.1981, no writ); Matter of Marriage of Stockett, 570 S.W.2d 151 (Tex.Civ.App.1978, no writ). The trial judge is in a more favorable posture to evaluate the physical, mental, moral and emotional needs of a child. Mumma v. Aguirre, 364 S.W.2d 220 (Tex.1963). Additionally, the trial court is afforded wide discretion because of the court’s opportunity to observe and evaluate personalities of contending claimants and to weigh the credibility of their testimony. Calhoun v. Ruffer, 425 S.W.2d 50 (Tex.Civ.App.1968, no writ). I recognize that Tex.Fam.Code Ann. § 14.01(b) (1975) gives natural parents a paramount right to custody of their children unless a positive disqualification has been shown. Minjarez v. Minjarez, 495 S.W.2d 630 (Tex.Civ.App.1973, no writ). Indeed, there is a strong presumption that the interests and welfare of children are best served by placing and maintaining custody in the natural parents. Wiley v. Spratlan, 543 S.W.2d 349 (Tex.1976). This presumption, however, is rebuttable. In the Interest of Barrera, 531 S.W.2d 908 (Tex.Civ.App.1975, no writ). If evidence is produced to support a finding of the nonexistence of that presumed fact, the case will proceed as if no presumption existed. Choyce v. Dallas County Child Welfare Unit of Texas Department of Human Resources, 642 S.W.2d 559 (Tex.App.1982, no writ); In the Interest of Gullory, 618 S.W.2d 948 (Tex.Civ.App.1981, no writ). The evidence presented at trial was sufficient to rebut the existence of the presumption. The custody of a child, moreover, may be awarded to a third party without first adjudging the parents to be unfit if it is in the best interest of the child to do so. Adams v. Adams, 519 S.W.2d 502 (Tex.Civ.App.1975, no writ); Gibson v. Hines, 511 S.W.2d 546 (Tex.Civ.App.1974, no writ). Indeed, the controlling consideration in custody cases is the child’s best interest, and not the claims of parents to custody. Mumma, supra. Additionally, Tex.Fam. Code Ann. § 14.07 (1975) provides in part:
(a) The best interest of the child shall always be the primary consideration of *815the court in determining questions of managing conservatorship, possession, and support of and access to the child
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(b) In determining the best interest of the child, the court shall consider the circumstances of the parents.
Where neither parent is a proper person to have custody of their children, the court can award custody to any suitable person disposed to assume such responsibility. Bough v. Bough, 263 S.W.2d 573 (Tex.Civ.App.1954, no writ). The majority takes issue with the fact that the individuals who would care for the children as managing conservators, Brian and Grace Cooper, could provide only a tiny and cramped living environment. The record reveals, however, that Brian and Grace have had their home remodeled to provide for adequate room for the four children.
I would therefore hold that the record as a whole demonstrates that the trial court’s judgment was correct. I am unable to find that the trial judge committed a clear abuse of discretion.
The judgment of the trial court should be affirmed.