Opinion
8 Div. 794.
June 25, 1925.
Appeal from Law and Equity Court, Franklin County; B. H. Sargent, Judge.
Williams Chenault, of Russellville, for appellant.
The father is the head of the family and custody of the children should be committed to him in preference to the mother. Ex parte Rickerson, 203 Ala. 305, 82 So. 769; Smith v. Smith, 17 Ala. App. 357, 84 So. 870; Carter v. Carter, 18 Ala. App. 186, 89 So. 861. The permanent welfare of the child is of controlling consideration in awarding the custody of the child. Phelps v. McLeod, 17 Ala. App. 480, 86 So. 150.
J. Foy Guin, of Russellville, for appellee.
A child of tender years should be committed to the care of the mother. Code 1923, § 8278; Anonymous, 55 Ala. 428; Striplin v. Ware, 36 Ala. 87; Kirkbride v. Harvey, 139 Ala. 231, 35 So. 848; Anderson v. Anderson, 165 Ala. 181, 51 So. 619. A parent who abandons a child for a long time forfeits his right to its custody. Children's Aid Soc. v. Davis, 211 Ala. 344, 100 So. 325; Kirkbride v. Harvey, supra. A woman's character as to chastity may not be defamed by mere hearsay and community gossip. Basden v. Basden, 209 Ala. 632, 96 So. 881; Powell v. Powell, 80 Ala. 595, 1 So. 549.
As repeatedly held by this court, in determining cases involving the custody of children of tender years, the welfare of the child should be the guiding and controlling consideration. These people are poor, and neither one is in a position, unfortunately, to provide anything beyond the mere necessities toward the support and maintenance of this child, but the respondent mother seems to have provided for her child as best she could and without the aid or assistance of the petitioner since she was nine months old. Petitioner admits that he has never contributed anything toward the support of said child since he left the mother, over four years ago, and the evidence shows that all during this period he manifested but little interest in or showed but little affection for said child. The child is a girl only five years of age, and we fail to see how her condition can be improved by taking her from her own mother and giving her to a father who has so long neglected her, and who is now incumbered with a second wife and three young stepchildren, and who is working for very small wages. Whether the trial court did or did not err in not permitting proof as to respondent's general character matters not, for, if not good, that of itself, and in the absence of proof particularizing her unfitness, no court would wrest this child from the bosom of her own mother and turn her over to a stepmother under the existing conditions.
The decree of the law and equity court is affirmed.
Affirmed.
SAYRE, GARDNER, and MILLER, JJ., concur.