Having due regard for the force and effect of family ties, the evidence clearly disclosed that the best interest of the child is that she remain with her foster mother, and therefore the court erred in the judgment rendered. 17 Ala. App. 245, 84 So. 308; 2 Ala. App. 461, 56 So. 589; 17 Ala. App. 480, 86 So. 150. L.S. Biggs, of Monroeville, for appellee.
Parental affection in most instances will afford to the child the tenderest care and the highest protection in the years of its helplessness. Black v. Montgomery, 17 Ala. App. 245, 84 So. 308. The parent is entitled to the care and custody of his child, unless some good cause is shown why he should not have such custody.
McCay v. Parks, 201 Ala. 647, 79 So. 119. The conclusion here reached and the reasons therefor are sustained in the cases of Black et al. v. Montgomery, 84 So. 308; Cook v. Echols, 16 Ala. App. 606, 80 So. 680; Montgomery v. Hughes, 4 Ala. App. 245, 58 So. 113; Gamble v. Cotton, 17 Ala. App. 110, 82 So. 558. 17 Ala. App. 245.
The parent is entitled to the care and custody of her child unless some good cause is shown why she should not have such custody, the natural presumption being that the best interest of a child will be preserved by an affectionate parent. Morris v. Morris, 19 Ala. App. 216, 96 So. 374; Black v. Montgomery, 17 Ala. App. 245, 84 So. 308; Payne v. Graham, 20 Ala. App. 439, 102 So. 729; Cook v. Echols, 16 Ala. App. 606, 80 So. 680; Phelps v. McLeod, 17 Ala. App. 480, 86 So. 150; McDonald v. Watkins, 18 Ala. App. 131, 89 So. 306. W. R. Belcher and J. W. Brassell, Phenix City, for appellees.
A parent may forfeit his prima facie right to custody of his child by his conduct, and his relinquishment of such custody to another and continued acquiescence therein are to be considered by the court in determining the question of the child's welfare. Payne v. Payne, 218 Ala. 330, 118 So. 575; Blevins v. Underwood, 232 Ala. 100, 166 So. 801; Dunn v. Christian, 202 Ala. 486, 80 So. 870; Brown v. Brown, 2 Ala. App. 461, 56 So. 589; Findley v. Jones, 214 Ala. 325, 107 So. 840; Phelps v. McLeod, 17 Ala. App. 480, 86 So. 150; Black v. Montgomery, 17 Ala. App. 245, 84 So. 308. The decree of the trial court on oral evidence should not be disturbed unless plainly contrary to the great weight thereof, he having seen, heard and observed the demeanor of the parties on the stand. Lewis v. Crowell, 210 Ala. 199, 97 So. 691.
Where, as here, the father is shown to be a proper person to be entrusted with the custody and welfare of his minor child, every reason suggests that the custody of the child be awarded to him. Gill v. Holdridge, 23 Ala. App. 398, 126 So. 176; Cook v. Echols, 16 Ala. App. 606, 80 So. 680; Black v. Montgomery, 17 Ala. App. 245, 84 So. 308; People v. Gorham, 70 Colo. 544, 203 P. 661; Wilson v. Mitchell, 48 Colo. 454, 111 P. 21, 30 L.R.A., N.S., 507; Stoddard v. Bruner, 217 Ala. 207, 115 So. 252; Crews v. Sheldon, 106 Kan. 438, 186 P. 498. Clark Williams, of Birmingham, for appellee.
Jones Jones, of Evergreen, for appellant. The father is prima facie entitled to the custody of his minor child, and, where he is suitable and willing to support and care for it, his right is paramount to all other persons, except that of the mother where the infant is of such tender years as to require her presence and care. Payne v. Graham, 20 Ala. App. 439, 102 So. 729; Ex parte Boaz, 31 Ala. 425, 427; Montgomery v. Hughes, 4 Ala. App. 245, 58 So. 113; Cook v. Echols, 16 Ala. App. 606, 80 So. 680; Black v. Montgomery, 17 Ala. App. 245, 84 So. 308; McDonald v. Watkins, 18 Ala. App. 131, 89 So. 306; Campbell v. Sowell, 230 Ala. 109, 159 So. 813. Hamilton Jones, of Evergreen, for appellees.
A parent, who is of good character, a proper person to have the custody of his children, and is reasonably able to provide for them, is entitled to their custody as against other persons. This rule applies although such other persons are much attached to the children and the children are much attached to them and prefer to remain with them. Powell v. Johnson, 213 Ala. 259, 104 So. 525; Montgomery v. Hughes, 4 Ala. App. 245, 58 So. 113; Morris v. Morris, 19 Ala. App. 216, 96 So. 374; Bailey v. Gaston, 8 Ala. App. 476, 62 So. 1017; Payne v. Graham, 20 Ala. App. 439, 102 So. 729; Brinster v. Compton, 68 Ala. 299; Black v. Montgomery, 17 Ala. App. 245, 84 So. 308; Gill v. Holdridge, 23 Ala. App. 398, 126 So. 176; Stoddard v. Bruner, 217 Ala. 207, 115 So. 252; Garrison v. State, 15 Ala. App. 596, 74 So. 726; Semple School v. Yielding, 16 Ala. App. 584, 80 So. 158; Sparkman v. Sparkman, 20 Ala. App. 50, 100 So. 621; Pugh v. Pugh, 21 Ala. App. 650, 111 So. 644; Children's Aid Soc. v. Davis, 211 Ala. 344, 100 So. 325; Findley v. Jones, 214 Ala. 325, 107 So. 840. GARDNER, Justice.
Lewis v. Crowell, 210 Ala. 199, 97 So. 691; Bolen v. Bolen, 205 Ala. 114, 87 So. 797; Whitten v. Whitten, 214 Ala. 653, 108 So. 751. Parents have the natural right to the custody and control of their children. 29 Cyc. 1586, 1588, 1590; Ex parte Rickerson, 203 Ala. 305, 82 So. 769; Montgomery v. Hughes, 4 Ala. App. 245, 58 So. 113; Powell v. Johnson, 213 Ala. 259, 104 So. 525; Black v. Montgomery, 17 Ala. App. 245, 84 So. 308; McDonald v. Watkins, 18 Ala. App. 131, 89 So. 306; Morris v. Morris, 19 Ala. App. 216, 96 So. 374; Cook v. Echols, 16 Ala. App. 606, 80 So. 680; 31 C. J. 990. An attempted gift of the custody of the child by the mother, who was insane, can have no effect as against the father. Montgomery v. Hughes, supra; Cook v. Echols, supra.
The custody of the children having been awarded to the father at a time when he was a fit custodian and the mother was not, their custody should not now be taken from him merely because the mother has since married her partner in adultery. 29 Cyc. 1588, 1603; Ex parte Rickerson, 203 Ala. 305, 82 So. 769; Montgomery v. Hughes, 4 Ala. App. 245, 58 So. 113; Cook v. Echols, 16 Ala. App. 606, 80 So. 680; McDonald v. Watkins, 18 Ala. App. 131, 89 So. 306; Black v. Montgomery, 17 Ala. App. 245, 84 So. 308. SOMERVILLE, J.