Myers v. Stewart

Per Curiam. There is no material difference between this case and that of Edward William James Ward v. Lela Cannon, joined by her husband, S. B. Cannon, in which opinion was filed at this Term of the Court. The record shows that E. F. Myers was the father of Foster Myers; that Foster Myers is ten years of age; that the boy’s mother died fourteen days after his birth and that the father, E. F. Myers, the Petitioner here, gave the child into the custody of its grandmother. The grandmother lived only five years thereafter and after the death of the grandmother the father delivered the child to Bessie Stewart, who was the sister of the child’s mother, and joined in a petition filed in the County Judge’s Court to have Bessie *174 Stewart appointed Guardian of the person and estate of the'said minor child. Letters of Guardianship were issued to Bessie Stewart appointing her Guardian of the person and estate of the minor. Those Letters of Guardianship-have not been cancelled or revoked. Therefore, on the record Bessie Stewart has the legal custody and control of the child and the proceedings resulting in the creation of such Guardianship have not been questioned. It is too well settled to require the citation of authorities that the validity of an order and appointment of this character cannot be collaterally attacked in habeas corpus proceeedings. The record further shows that E. F. Myers has remarried. The record shows, that the child is happy, contented and well cared for where he is. Whether or not he would be happy, contented and well cared for when required to live in the home with his stepmother is, to say the least, problematical. The child appeared in court and expressed the desire to remain in-the custody of his aunt. The welfare of the child is always the first consideration which should influence the courts in cases of this kind, while it is not always controlling. The record further shows that the father has contributed somewhat to the support of the child and there is no reason why he cannot or should not continue to do this while the child continues to live with his aunt. The order of the court in this case awarded the custody of the child to the aunt and the regularly appointed Guardian, but the order provided that the father should have the custody of the child during seven weeks of vacation each and every summer and one week during each and every Christmas vacation. The order further specifically retained jurisdiction of the case for the purpose of making such fur *175 ther orders as the exigencies of the case may require. So the order was without error and should be affirmed. It is SO' ordered. Affirmed. Whitfield, P. J., and Brown and Buford, J. J., concur. Ellis and Terrell, J. J., concur in the opinion and judgment. Davis, C. J., dissents.