Another family member or a third party seeking custody must affirmatively, not comparatively, show the natural parent is unfit. Ingles v. Hodges, 1977 OK 18, ¶ 9, 562 P.2d 845, 846 (holding even the children's preference was not sufficient to justify taking them from their father when there was no evidence of the father's unfitness). A court will not deprive natural parents of custody simply because another family might be able to provide more amenities and opportunities for the child.

KPERS v. Reimer Koger Assocs., Inc., 262 Kan. 110, 118, 936 P.2d 714 (1997). The result we reach is not altered or changed by the decision of the Oklahoma Supreme Court in S.W. v. Duncan, 24 P.3d 846 (Okla. 2001), involving the parties to our appeal. That opinion appears to have recast its previous ruling in Turley v. Turley, which, at the time Stanley T. Ward removed his daughter from the State of Oklahoma, relied on Ingles v. Hodges, 562 P.2d 845 (Okla. 1977) to hold: "Upon the death of the parent into whose custody children are placed by a decree of divorce, the children stand, with relation to the surviving parent and all the world as if no divorce had been entered."

He relies upon Turley v. Turley, 1981 OK 161, 638 P.2d 469, where we said the following: In Ingles v. Hodges, Okla., 562 P.2d 845 (1977), this Court held: "Upon the death of the parent into whose custody children are placed by a decree of divorce, the children stand, with relation to the surviving parent and all the world, as if no decree of divorce had been entered."

Sherrick v. Butler, 175 Okla. 538, 53 P.2d 1097 (1936) (noting that there was no evidence offered that the mother was unable or unfit to care for her child); Marcum v. Marcum, 265 P.2d 723 (Okla. 1954); Roberts v. Biggs, 272 P.2d 438 (Okla. 1953); Hollick v. McDaniel, 401 P.2d 466 (Okla. 1965). ¶ 17 In Ingles v. Hodges, 562 P.2d 845 (Okla. 1977), a habeas corpus proceeding brought by a natural father to obtain custody from the maternal grandparents, although noting that in a habeas proceeding involving only the issue of custody the parent's legal right was subordinate to the best interests of the child, we held that in the absence of a clear showing of unfitness of the father, he was entitled to have custody of his children. We reiterated that to deprive a parent of custody of his children in favor of a third person, the parent must be affirmatively, not comparatively, shown to be unfit.

(Citations omitted). See also Ingles v. Hodges, Okla., 562 P.2d 845 (1977). In a minor child custody contest between a grandparent and a natural parent, Gibson, supra, further holds three rights or interests are to be regarded: "First, that of the child; second, that of the parent; third, that of those who have for years discharged all the obligations of parents."

We Grant Certiorari, Vacate the opinion of the Court of Appeals, and Remand to the trial court with Directions to reinstate the habeas corpus proceedings and award custody of the minor children to the maternal grandfather in the habeas corpus proceeding. In Ingles v. Hodges, Okla., 562 P.2d 845 (1977), this Court held: "Upon the death of the parent into whose custody children are placed by a decree of divorce, the children stand, with relation to the surviving parent and all the world, as if no decree of divorce had been entered."

Paronto v. Armstrong, 161 Kan. 720, 171 P.2d 299, 303 [1946]; see 10 O.S. 1971 § 9[ 10-9].Ingles v. Hodges, Okla., 562 P.2d 845, 846 [1977]; Browning v. Tarwater, 215 Kan. 501, 524 P.2d 1135, 1138-1139 [1974]; Christlieb v. Christlieb, 179 Kan. 408, 295 P.2d 658, 659 [1956]; Application of Vallimont, 182 Kan. 334, 321 P.2d 190, 193 [1958]; Hickey v. Bell, 391 P.2d 447, 448 [Alaska 1964]; Application of Altmiller, 76 Idaho 521, 285 P.2d 1064, 1068 [1955]; In re Marriage of Croley, 91 Wn.2d 288, 588 P.2d 738, 742 [1978]; Anno: 29 ALR3d 366, 391-394; 25 ALR3d 7, 33-39.In re Cox' Guardianship, 12 N.J. Misc. 536, 173 A. 602, 603 [1934]; Paronto v. Armstrong, supra note 2.

Before this legal custody may be interfered with it must be affirmatively shown that the children come within the scope of the above mentioned act, in this case, by a finding the children are dependent or neglected as defined by the statute. Ingles v. Hodges, 562 P.2d 845 (Okla. 1977).In re Sweet, 317 P.2d 231 (Okla. 1957) held in determining the custody of children it is not the past history of the case, but the present considerations which control.

This statute effectively codified earlier case law that when a parent dies who has custody of a child pursuant to a decree of divorce "the right of custody inures automatically to the surviving parent". Turley v. Turley, 1981 OK 161, 638 P.2d 469, 471; Ingles v. Hodges, 1977 OK 18, 562 P.2d 845, Weber v. Linch, 1978 OK CIV APP 14, 579 P.2d 213, 215. This rule is qualified by the statute in that it is not applicable if the noncustodial parent has failed to support the child for the previous twelve months, has abandoned the child, or where it would be detrimental to the health or safety of the child for that noncustodial parent to be given custody.

The court's jurisdiction ceased as to control and custody of the children. See Ingles v. Hodges, 562 P.2d 845, citing Hughes v. Bowen, 193 Okla. 269, 143 P.2d 139 and In re Rodgers, 492 P.2d 324. The Supreme Court in Ingles held at page 846: