ON PETITION TO REHEAR
The petitioners-appellees, Donald Hugh Pierce and Shelby Jean Holt Pierce, have filed in this Court a petition to rehear in respect to the opinion filed in this cause on April 25, 1969‘.
The first ground of the petition to rehear is that petitioners are aggrieved because this Court ordered the custody of the minor child to be restored to her mother. It is insisted that a reversal of a decree of abandonment does not automatically result in awarding custody to the successful party, but that the cause should be remanded for discretionary award of custody by the trial court.
As was pointed out in the original opinion, the petitioners herein repeatedly stated in their testimony that they did not question the fitness of the mother to have custody of her child. The custody has been awarded to her in a divorce proceeding against the father who of-ered no defense in this case. The child was in the custody of the mother at the beginning of this adoption proceeding, and the mother was. deprived of custody by extraordinary process issued ex parte and subsequent orders of the court.
If the mother was in lawful and rig’htful custody of the child and was. deprived of that custody by judicial orders which have been held to. be erroneous, and vacated, what possible disposition could be made of the matter except to restore the situation and status which existed before the erroneous proceedings?
*493The second, complaint of the petition is that this Court looked only to the intentions expressed by the mother without examining her past course of conduct to determine whether she abandoned the child and whether petitioners received the child on a permanent basis. A thoughtful reading of the opinion refutes the assumption that this Court ignored the mother’s conduct. At least three pages of the opinion are devoted to a recitation of the mother’s conduct. The petition to rehear calls attention to no particular act or event which was overlooked or ignored. The conduct and statements of the mother were not, under the circumstances, sufficient to demonstrate an intention to abandon.
As pointed out in the opinion, the issue of abandonment is determined not by the expectations or understandings of petitioners but rather the intentions of the parent as expressed by words and deeds.
Petitioners again cite Ex Parte Wolfenden, 48 Tenn. App. 433, 348 S.W.2d 751, which was discussed fully in the opinion. The Wolfenden case was remanded for further proceedings regarding custody, but it should be understood that the father did not have the child at the beginning of the proceedings as in the present case, and it was the father who was seeking to acquire custody, among other things. The Wolfenden opinion states:
“Since that time the father has been trying continuously through the Courts to gain possession of his daughter.” 43 Tenn.App. at 438, 348 S.W.2d at 754.
On page 447, 348 S.W.2d on page 758, of the opinion is found:
“We consider it the duty of the Court, if custody is continued in Robert Wolfenden and wife, to provide *494suitable visitation privileges for the father and his wife free from interference by the Robert Wolfendens. The child should be permitted to spend some time in the home of the father when it will not interfere with school and other normal activities.”
There is no factual similarity between Wolfenden and the present case to require this Court to remand for further litigation.
Petitioners again cite Fancher v. Mann, 58 Tenn.App. 471, 432 S.W.2d 63 (1968), which was fully discussed in the opinion. Petitioners assert that the statement of this Court that:
“It is the intent of the mother to effect an abandonment, not the expectation of others, that is controlling”
is in conflict with Fancher v. Mann, but do not cite any statement in Fancher to the effect that the expectation of others is of any determinative consequence. The sentence immediately preceding the above quoted sentence includes the reservation:
a# * * un;[esg that expectation was communicated to and acquiesced in by the mother.”
In the Fancher case, as in the present case, all of the facts, circumstances, statements, actions and omissions were considered, and in each case they were held insufficient to effect an abandonment.
The petition to rehear is respectfully denied.
Shriver, P. J. (M.S.), and Puryear, J., concur.