Carlson v. Carlson

May 8, 1925, plaintiff was granted a decree of absolute divorce from her husband, but the custody of the 3 1/2-year old daughter was given to the defendant, to remain and live with his parents, until the further order of the court. Five months later plaintiff filed a petition to amend the decree so that she might have the custody of the child. After a full and complete hearing in open court, the decree was so amended, and the defendant appeals.

We are impressed, from the record, that the chancellor gave this matter most careful and serious considerations. He permitted both parties great latitude in the proof, and, at its conclusion, proffered a most complete and comprehensive analysis of the entire situation. He not only had the benefit of personal contact with the parties and their witnesses, but he states he was also well acquainted with many of them. His disposition of what is probably one of the most delicate and troublesome matters coming before a court of chancery, viz., which divorced parent shall have the custody of a minor child, seems to have been both just to the parents, and for the best interests of the infant.

The statute (3 Comp. Laws 1915, § 11484) gives the custody of a child under 12 years of age to the mother, in recognition of the fact that as a general rule the present welfare of children of this age requires a mother's care. While courts have discretionary power to disregard the provisions of this law, it should never be done unless it clearly appears that the mother's character is such that her child should not be with her, or that for some other good and clearly apparent reason the best interests of the child would be subserved if its custody were elsewhere.

In the instant case, the mother has remarried and has a husband willing and able to care for and support the child. She offered much proof of her good reputation by those who were in position to know. It is true defendant produced several witnesses who claimed they had seen her more or less in the company of her present husband, before as well as after she was divorced from defendant. Claim is made, too, that she has associated with a woman of somewhat doubtful reputation. But the proof is not convincing that such associations were extensive, or that the person is justly complained of. We are not convinced that these things brand her as disreputable.

The whole situation is not unusual. Defendant's parents are without doubt eminently respectable, and able to furnish the child a good home. But the mother has first claim upon her child, and we agree with the chancellor that she is much more able to rear it than are its grand-parents. The decree is liberal to the defendant in permitting him to visit and have his daughter a portion of the time, and it is subject to amendment at any time conditions so change as to warrant a different disposition of, and care for, the child. We see no reason for disturbing the decree as made by the chancellor.

The case is affirmed, with costs to appellee.

BIRD, C.J., and SHARPE, STEERE, FELLOWS, WIEST, CLARK, and McDONALD, JJ., concurred.