We think there can be no doubt that there were recognized customs by the Choctaw Tribe of Indians and in the Chickasaw, Creek, and Seminole Nations which had the force of tribal common law, whereby marriage could be effected by mutual agreement followed by cohabitation, and divorce could be effected by mutual agreement and permanent separation. See, Johnson v. Dunlap, 68 Okla. 216, 173 P. 359, 360; Sealey v. Smith, 81 Okla. 97, 197 P. 490, 494; James v. Adams, 56 Okla. 450, 155 P. 1121, 1122; Proctor v. Foster, 107 Okla. 95, 230 P. 753, 754; Coker v. Moore, 121 Okla. 219, 249 P. 694, 695; Cyr v. Walker, 29 Okla. 281, 116 P. 931, 934, 35 L.R.A., N.S., 795; Kunkel v. Barnett, D.C.Okla., 10 F.2d 804, 805; Palmer v. Cully, 52 Okla. 454, 153 P. 154, 157, Ann.Cas. 1918E, 375. See, also, Buck v. Branson, 34 Okla. 807, 127 P. 436, 437, 50 L.R.A., N.S., 876.

A legal question determined by the district court was that upon the presentation to the county court of a nomination of a guardian by a minor who had attained the age of 14 years, the county county was without authority of law to determine the mental qualifications of the minor to make such a nomination. Since no appeal was taken upon a question of fact, the finding of the county court of want of capacity of the minor is final and conclusive. While, by the provisions of section 1431, O. S. 1931 (section 1440, C. O. S. 1921), a minor, at any time after he has attained the age of 14 years, may appoint his own guardian, subject to the approval of the county judge and while, under the decisions of this court in Given v. Pollock, 96 Okla. 25, 219 P. 898, Coker v. Moore, 121 Okla. 219, 249 P. 694, and others, the only discretion that can be exercised by the county judge is as to whether or not the nominee is a suitable and competent person and resides in the state, the county judge is a trier of facts and must determine whether or not the minor has attained the age of 14 years. If the minor has not attained that age, the statute has no application. It is conceded in this case that the minor had attained the age of 14 years at the time of making the nomination in question, if the nomination was, in fact, made by the minor. The county judge, being the trier of the facts, must determine whether or not the minor has nominated or appointed a guardian under the provisions of the statute.

Appellee cites several cases as supporting his contention that § 762, supra, is mandatory on the trial judge if the minor's nominee is fit and suitable to serve as guardian. The cases upon which appellee relies are: Lester v. Smith, 83 Okla. 143, 200 P. 780 (1921), where a fourteen year old minor signed an application for the appointment of a guardian and later challenged the appointment; Given v. Pollock, 96 Okla. 25, 219 P. 898 (1923), where the minor had an estate, a guardian had been appointed, and the minor had attained the age of fourteen and nominated another as her guardian; Mullen v. Hawkins, 97 Okla. 30, 222 P. 967 (1926), where the trial court set aside a guardianship order involving a fourteen year old minor who had not executed a valid nomination and had no other notice of the guardianship proceedings: Coker v. Moore, 121 Okla. 219, 249 P. 694 (1926), where the minor had no notice of the guardianship proceedings and the court held the order appointing the guardian was void; and In the Matter of the Estate and Guardianship of Sowerwine, a minor, Wyo., 413 P.2d 48 (1966), where the court held that any defect in the appointment notice to the father for the appointment of a guardian for his minor son was cured by the father's voluntary appearance. The cases cited do not support appellee's contention because they do not address the fundamental issue presented, i.e. does § 762, supra, make it mandatory upon the trial judge to appoint as guardian the minor's nominee where there is no showing of necessity or convenience for the appointment.

But this is not a guardianship proceeding but rather an action for actual custody by a Writ of Habeas Corpus by a father who has not been divested of legal custody of his children and as such is their legal guardian. Coker v. Moore, 121 Okla. 219, 249 P. 694 (1926); In re Guardianship of Baptiste Minors, 114 Okla. 116, 243 P. 938 (1925). We further agree that in a habeas corpus proceeding involving only custody of a child, the legal right of a parent is subordinate and the best interests of the children is the question of foremost consideration.

The minors, being over 14 years of age, exercised their statutory right and nominated as guardian successor their brother, A.W. Hembree. Section 1431, O. S. 1931, title 58, sec. 768, Okla. Stat. Anno.; Coker v. Moore, 121 Okla. 219, 249 P. 694. On January 21, 1939, Waldrep, as guardian, answered the application for his removal by general denial, sought and secured a continuance of removal proceedings.

If Willie Bird was over the age of 14 years, he was entitled to notice of the hearing of the application for the appointment of a guardian that he might have an opportunity to nominate a guardian. Coker v. Moore, 121 Okla. 219, 249 P. 694. If he was under the age of 14 years, no notice to him was required. It was necessary, therefore, for the court to determine the age of Willie Bird in order that the court might know whether or not it was necessary that notice be given to Willie Bird of the application for appointment of a guardian before a guardian could be appointed.