Bourn v. Hinsey, Et Ux.

Chillingworth, Circuit Judge. This writ of error is from a final judgment in a habeas corpus proceeding, wherein the custody of a girl — now nine years of age — was awarded to the respondents, a paternal aunt of the child and the aunt’s husband, rather than to the petitioner, the mother of the child. There is' little dispute about the facts. The parents resided in Mississippi, where the child was born. A few months thereafter the mother became ill with tuberculosis. She soon entered a sanitarium and remained there until she was discharged, as cured, in May, 1935. When the mother entered the sanitárium the child was in the custody of the father, who, apparently being unable of unwilling to have the custody of the child, delivered the child to his sister, one of the respondents in this suit. The child has been in the custody of these respondents ever since. *406 There is no doubt but what they have given the child, every attention, affection and care that they could bestow, upon her. They have a comfortable home in Quincy, Florida, where the husband is a foreman carpenter for a tobacco corporation, with an annual income of $1,500.00 and perquisites from the farm of his employer. The mother of the child is a woman of even more modest means. She owns no home and is now residing with her parents, tenant farmers in Mississippi. Apparently .her only means of support at the present time, aside from what her parents are able to do for her, is the sum of $35.00 per month paid her by her husband, the father of the child, as alimony. The petitioner brought a suit in Mississippi against the father of the child, for separate maintenance and alimony. Both parties still reside in Mississippi. The Court, having found the petitioner, as well as the father of the child, fit to have custody of her, awarded the custody to the mother for nine months in the year and the father for three months in the year. The child was then in Florida. Two questions are presented to the Court. First, is the Florida court required to give full faith and credit to the decree of the Chancery Court in Mississippi, regardless of any considerations involving the welfare of the child, and secondly, whether the welfare of the child requires her custody to be awarded to the petitioner or the respondents. Upon authority of Beekman v. Beekman, 53 Fla. 858, 43 So. 923, it appears that the domicile of the father being in Mississippi, the child was incapable of making a choice of a domicile in Florida, independently of the father’s domicile. Hence, the Mississippi court did have jurisdiction over the child, because it had jurisdiction over both parents, who were before the court. The proceedings- of the Court in Mississippi are admissible in evidence. The provisions *407 of the Final Decree will be followed by the Court here, unless changed conditions or the welfare of the child, require a different adjudication. Minick v. Minick, 111 Fla. 469, 149 So. 483. In this case we - have no showing of any changed conditions. There is nothing to indicate that these respondents, who no doubt deserve the undying gratitude of the,mother, for their care of the child at a time when she was unable to care for her, should in any way entitle them to have permanent custody and control of the child. The mother should not be required to pay this debt of gratitude by giving up her child. The slight difference between the pecuniary advantages of the petitioner and the respondents, while it is worthy of consideration, can in no way induce the court to award the child to those best able financially to provide for the child. The material things of life are important, but far less important than the natural love, affection and care that a mother can, and that this mother no doubt will, give to her child. The welfare of the child is paramount.' She lost her child through no fault of her own. In so far as she has been able, she has continually. kept in touch with the child. She is now able to give the child a home, proper schooling, care and attention. In all likelihood the child— who now unfortunately hardly knows her mother — at this tender age of nine, might express a preference to be with the respondents. Even though the record is silent upon this subject, the present inclination of the child should riot prevail in this case over the considerations which should entitle a mother to have her own child. This mother should have the custody of her child. She is fit. She is willing. She is able. She has done nothing that should deprive her of the custody of her child. She walked down through the valley of the shadow of death and *408 brought this child into the world. She should have her child. Therefore, we hold that a mother, who is morally fit and able to care for her own child, in her own style of living, is entitled to have her child, even as against those who have, during almost the child’s entire life, raised the child and given her every love and attention that they were able to give in their style of life, unless the welfare of the child requires a different adjudication as to her custody. The judgment is reversed and the cause remanded for the entry of a judgment awarding the custody of the child to the petitioner. Ellis, C. J., and Terrell, Brown,. Buford and Chapman, J. J., concur. Whitfield, J., not participating because of sickness.