Chunn v. Graham

Lamar, J. (after stating the foregoing facts). It was competent on the hearing to permit the child to state with whom she preferred to live. In many cases such wish ought to turn the scale. The nearer the child approaches fourteen, with the legal right to-choose her guardian, the greater the weight to be given such wish. But until that age the law does not recognize the child as sufficiently mature to determine with whom it ought to live; and its wish, therefore, is not controlling, but may be considered by the habeascorpus judge along with all the other evidence as to what is to the minor’s best interest. For at last, in this class of cases, that is usually the controlling factor. The petitioner and respondent start the machinery of the law, and can appeal and continue the litigation until there is a final decision; but it is the best interest of the child, and not the interest of the moving parties, that must control the decision, unless one of them has a legal right and is a proper person to have the custody of the minor. There was no error of law assigned; the evidence, though conflicting, was amply sufficient to support the finding of the ordinary, which has been approved by the judge of the superior court on an application for certiorari; and the judgment is Affirmed,. By five Justices.