Opinion
October 13, 1942.
Appeal from Harlan Circuit Court.
J.S. Forester, Judge.
C.B. Upton, J.B. Johnson and J.S. Feather for appellant.
George R. Pope for appellee.
Affirming.
The case involves the custody of Willa Jean Perkins, an infant, four years of age. In granting him a divorce the chancellor awarded the father the custody of the child. The mother, Thelma Perkins, has appealed from that part of the judgment.
Many witnesses were called to testify. To detail their evidence would serve no useful purpose and would unreasonably extend the opinion. The evidence as to the character of the mother is conflicting. Some of the witnesses, particularly his wife, attacked the character of the father, but the preponderance of the evidence shows him to be a man of good character, and reputed to be a hard and consistent worker, although temporarily disabled at the time of the trial. When working he earns approximately two hundred dollars per month. We gather from the testimony that the actual custody of the child will be placed in the hands of grandparents no matter to which of the parents the nominal custody is awarded. The grandparents on both sides seem to enjoy good reputations.
In determining questions of this kind, the true guide for the court is the welfare of the child. The controlling thought is that the child is a human being, and is not a chattel to be disposed of in accordance with the wishes or desires of the parents or anyone else. Davis v. Davis, 289 Ky. 618, 159 S.W.2d 999. Where there is doubt in the mind of the court, a young child will ordinarily be left in the custody of the mother. But where the evidence shows the mother might be of such character as to be heedless of her duty to mold the character of the child in proper form, the courts are unwilling to take the risk involved in leaving the child in her custody. No doubt the chancellor knows the witnesses and the parties involved in this case. He has concluded that the best interests of the child will be served by leaving her in the custody of her father, who makes his home with his parents. The evidence does not raise more than a doubt in our minds as to the wisdom of this decision, therefore, in conformity with our rule in equity cases, we are constrained to abide by it. Elam v. Elam, 258 Ky. 350, 80 S.W.2d 11.
The judgment is accordingly affirmed.