I join in the dissent of Justice Hale but desire to point out what I believe to be the fallacy of the majority opinion.
They apparently hold that, where the mother is dead, any father who has not abandoned his child and who asks for his custody is entitled to it unless the one having custody proves that the father is unfit to have it. They say: "Upon this issue [the father's fitness] the burden is surely upon the defendant who disputes a father's claim of custody." At the outset the majority concede that the father is not entitled to custody if "`the best interest and welfare of the child call for other care and custody.'" [Allender v. Selders, 227 Iowa 1324, 1331, 291 N.W. 176, 180.] The majority easily answer this requirement, however, by the pronouncement: "If one parent be dead, the best thing for any child is to be with the surviving parent, provided that parent is a fit person for his custody." No authority is cited for this holding, which means, when coupled with the majority's pronouncement on the burden of proof, that a father is entitled to prevail unless the custodian is able to establish the father's unfitness. No opinion of this court supports such decision, *Page 673 which is contrary to our repeated holdings that the best interests of the child are controlling. See our latest case of this kind, Lancey v. Shelley, 232 Iowa 178, 183, 2 N.W.2d 781, 783, citing numerous authorities, where we say, "`the well settled rule in this state is that the paramount consideration is the best interests of the child.'"
In the latest case cited by the majority, Allender v. Selders,227 Iowa 1324, 1330, 291 N.W. 176, 179, we say:
"`In time, however, it [habeas corpus] was extended to controversies touching the custody of children, which were governed, not so much by considerations of strictly legal rights, as by those of expediency and equity and, above all, the interests of the child.' [People ex rel. Riesner v. New York Nursery and Child's Hospital, 230 N.Y. 119, 124, 129 N.E. 341, 343.] * * *
"`The legal rights of a parent are very gravely considered, but are not enforced to the disadvantage of the child. Such is the universal practice.' [State ex rel. Jones v. West, 139 Tenn. 522, 527, 201 S.W. 743, 744, Ann. Cas. 1918D, 749.] * * *
"`The controlling consideration should be the present and future best interests of the child, with due regard to the natural rights of the parent. * * *
"With these rules to guide us, and keeping particularly in mind that the best interests and welfare of the plaintiff [child], both present and future, are paramount to the rights of the father, and also to those of the defendants, let us consider the facts a little further."
Especially applicable here is Barry v. Reeves, 203 Iowa 1345, 1347, 1348, 214 N.W. 519, 520, where we say:
"The rules of law governing habeas corpus actions that involve the custody of minor children have materially changed within the last few years. This has been true of the decisions of this court, as well as the trend of the authorities generally. In Risting v. Sparboe, 179 Iowa 1133, we said:
"`Some of the earlier decisions seem to have treated the right of the father to the custody of the child as paramount, even absolute, except in cases of gross abuse of parental authority, and expressions seemingly in approval of such doctrine may be *Page 674 found in opinions of this court. See Van Auken v. Wieman,128 Iowa 476; Brem v. Swander, 153 Iowa 669. The more recent opinions, however, quite generally regard the welfare of the child as paramount, in cases of this character.'"
The majority cite and quote at length from Van Auken v. Wieman and Brem v. Swander, which were repudiated in Risting v. Sparboe and Barry v. Reeves.
The majority say, without citing any authority therefor, "The child's preference * * * is not very persuasive when the contest is between a parent and one who stands in no blood relationship to the child."
In Barry v. Reeves, supra, 203 Iowa 1345, 1350, 214 N.W. 519, 521, a contest between the mother of a boy of about the same age as the Wooley boy and one who was not related to him, we say:
"Great weight should be given to the fact that the boy has reached such an age of discretion that he is capable of expressing a preference in this matter, which is entitled to proper consideration."
I think it is a grave mistake to take this boy, who was twelve years old in May 1943, from the home of his stepfather and the latter's mother in the little town of Emerson, where he is happy, contented, well off, and wants to stay, and force him against his will into a strange home of which we know nothing, in the outskirts of Denver, with his father, of whom he has seen practically nothing for about five years, and his new wife ofwhom we know nothing and who is a stranger to the boy, contrary to the judgment of an experienced trial court, who itself questioned the boy at length. It is specially detrimental to the welfare of the boy to execute the mandate of the majority during the current school year.
HALE, OLIVER, and MANTZ, JJ., join in this dissent. *Page 675