" (Italics supplied) The above statement was quoted or referred to in a number of later cases including the following: Pachkofsky v. Pachkofsky, 192 Or. 627, 236 P.2d 320; Pick v. Pick, 197 Or. 74, 79, 251 P.2d 472; Gibson v. Gibson, 196 Or. 198, 216, 247 P.2d 757; Laurance v. Laurance, 198 Or. 630, 258 P.2d 784; Wilson v. Wilson, supra; and Wengert v. Wengert, 208 Or. 290, 293, 301 P.2d 190. The court did not explain precisely what it meant when it said that the moral unfitness of the mother, to be a relevant factor, must have a direct bearing upon the welfare of the child.
When far more serious charges have been made and proved, this court has nevertheless refused to separate the child from its mother, where her alleged misconduct did not have a direct bearing upon the welfare of the child. Pachkofsky v. Pachkofsky, 192 Or. 627, 236 P.2d 320; Sakraida v. Sakraida, 192 Or. 217, 233 P.2d 762; Pick v. Pick, 197 Or. 74, 251 P.2d 472; and Meredith v. Meredith, 203 Or. 45, 276 P.2d 387. If this were merely a contest between the parties we might well say that the innocent party is entitled to the child.
This court has always inclined to vest the custody of a child of tender years in the mother in the absence of evidence of immorality or neglect, particularly when the child is a little girl and it appears to be for the best interests and welfare of the infant to do so. McDonald v. McDonald, 197 Or. 275, 280, 253 P.2d 249; Pachkofsky v. Pachkofsky, 192 Or. 627, 236 P.2d 320; Goldson v. Goldson, 192 Or. 611, 236 P.2d 314. Here we find nothing to discredit the mother's character, nothing which marks her as unworthy in her care of and devotion to her little daughter, and nothing which at this time would justify relieving her of the legal care, custody and control of Kathy. However, the satisfactory character of these maternal factors are, alone, insufficient to warrant removing the child beyond the pale of the father's affection and masculine counsel when it appears that he is a man of good reputation and is considerate of the child's well being, and that such association of father and child can be provided for safely and conveniently.
The rule expressed in the cases above cited has been somewhat extended by condoning certain instances of a mother's marital indiscretions in order to secure to the child the benefit of maternal care and affection when it otherwise appeared that the mother was qualified to assume such responsibility. Gibson v. Gibson, supra; Goldson v. Goldson, 192 Or. 611, 236 P.2d 314; Pachkofsky v. Pachkofsky, 192 Or. 627, 236 P.2d 320. When such evidence also discloses that there has been a reformation, the claims of the repentant mother to custody are greatly enhanced.
What is said in that case is applicable to the situation now before the court. Under the decisions by this court, defendant is clearly entitled to the custody of her son. Laurance v. Laurance, supra; Pick v. Pick, 197 Or. 74, 251 P.2d 472; Goldson v. Goldson, supra; Pachkofsky v. Pachkofsky, 192 Or. 627, 236 P.2d 320; Kellogg v. Kellogg, 187 Or. 617, 213 P.2d 172; Jenkins v. Jenkins, 184 Or. 525, 198 P.2d 985. The decree of the court respecting the custody of David Garrett Wilson, minor child of plaintiff and defendant, shall be, and the same hereby is, modified by substituting therefor the following:
" See, to like effect, Pachkofsky v. Pachkofsky, 192 Or. 627, 236 P.2d 320. Apparently the presiding judge did not look with disapproval upon the mother's general suitability for the grave task of rearing these two boys into good manhood, but condemned her association with Orr. We believe that when the trial judge, on account of an aversion to Orr, proposed to ignore the compacts into which the parties had entered and give the children into the father's custody, he should first have received evidence indicating that the mother's association with Orr would be detrimental to the boys, and also that the plaintiff had a suitable home for himself and his offspring.
As against the mother of the child, the grandmother enjoys no natural or special rights. Pachkofsky v. Pachkofsky, 192 Or. 627, 635, 236 P.2d 320; Goldson v. Goldson, supra. If the trial court felt it proper to deny custody of the child to either of the parents, and that its best interests demanded that such custody should be awarded to a grandparent, we cannot understand why the paternal, rather than the maternal, grandmother was preferred.