Phelps v. McLeod , 17 Ala. App. 480 ( 1920 )

Habeas corpus by appellant, the father, against appellee, the maternal grandmother, for the custody of two boy children aged, respectively, 11 and 3 years, the mother being dead.

Coming, as this case does, from the equity side of the docket of the circuit court, counsel raise the question as to the jurisdiction of the Court of Appeals under the act creating this court to entertain the appeal. This question was submitted by counsel to the Supreme Court, and that court answered as follows:

"Per Curiam. This cause belongs in the Court of Appeals. Montgomery v. Hughes, 4 Ala. App. 245, 58 So. 113.

"All Justices concur."

Thus the jurisdiction is fixed in this court.

While courts recognize the rights of the father to the custody and control of his minor children, he being otherwise a fit and proper person, all the courts agree that the prime consideration in determining the question is the permanent good of the child. In other words, the courts do not stand upon the naked legal right of the parent, but look to the ultimate good of the minor.

We have in the instant case carefully considered the evidence, and without attempting to set it out, which would serve no good purpose, we have reached the conclusion not to disturb the finding of the trial court. This court is not convinced that the decree, which is merely a temporary award of the custody of the children to the grandmother, is so contrary to the evidence as to justify us in setting aside the judgment of the trial court, who saw the witnesses, heard them testify, and saw both parties and the children in question.

The cause is affirmed.

Affirmed.