In Cecil v. State ex rel. Cecil, 192 Tenn. 74, 237 S.W.2d 558, 559, Mr. Justice Gailor also announced what we understand to be the present rule concerning the actions of Trial Judges in child custody cases: "In cases involving child custody, the decision of the Trial Judge who saw and heard the witnesses, is to be given great, if not controlling effect, and we will interfere only where we find a palpable abuse of discretion, or a judgment against the great weight of the evidence. Davenport v. Davenport, 178 Tenn. 517, 160 S.W.2d 406; State ex rel. Parker v. Parker, 191 Tenn. 564, 235 S.W.2d 580."
It is argued this State has recognized the majority rule prevailing in our sister states that the court of original jurisdiction does not retain jurisdiction to modify an award of custody after the death of one of the parents. In support of this insistence, defendant cites and relies upon the cases of Stubblefield v. State ex rel. Fjelstad, 171 Tenn. 580, 106 S.W.2d 558 (1937); and State ex rel. Parker v. Parker, 191 Tenn. 564, 235 S.W.2d 580 (1951). We cannot agree.
On appeal to this Court, it was held the evidence did not preponderate against the decision of the trial court. The case was then removed by certiorari to the Supreme Court, which, speaking through Mr. Justice Burnett, held it was the duty of the appellate court to review the evidence de novo, cf. State v. Parker, 191 Tenn. 564, 235 S.W.2d 580; Cecil v. State, 191 Tenn. 74, 237 S.W.2d 558, and it then so reviewed the evidence and held that it was for the best interest of the child that his custody be given the Youngs. This opinion was filed May 6, 1949, and gives a full history of the events.
In cases involving child custody, the decision of the Trial Judge who saw and heard the witnesses, is to be given great, if not controlling effect, and we will interfere only where we find a palpable abuse of discretion, or a judgment against the great weight of the evidence. Davenport v. Davenport, 178 Tenn. 517, 160 S.W.2d 406; State ex rel. Parker v. Parker, 191 Tenn. 564, 235 S.W.2d 580. Furthermore, on the present petition and the facts therein stated and later proved, the Circuit Court of Davidson County could do no more than recognize the jurisdiction of the Superior Court of Spaulding County, Georgia, and in recognition of the decree of that Court, made a part of this record, return the custody of the minor to his father.
This view [i.e., the tender ages doctrine preference for the mother to have custody of minor children] prevailed in Tennessee for decades. See, for example, Parker v. Parker, 235 SW2d 580 (Tenn. 1951); Lyle v. Lyle, 6 SW 878, (1888); McAllister v. McAllister, 57 Tenn. 345 (1872); Robinson v. Robinson, 26 Tenn. 40 (1846); Long v. Long, 488 SW2d 729, (Tenn. App. 1972); Logan v. Logan, 176 SW2d 601 (1943). But the law respecting custodial preference gradually edged away from gender considerations concurrently with the enactment of legislation and the development of a body of law dealing with the eradication of discrimination.
(T.R. 22)" Appellants cite State ex rel. Parker v. Parker, 191 Tenn. 564, 235 S.W.2d 580 (1951). Said opinion does, indeed, contain the favorable statements relied upon by appellants; but a reading of the entire opinion produces an entirely different impression.
"In cases involving child custody, the decision of the Trial Judge who saw and heard the witnesses, is to be given great, if not controlling effect, and we will interfere only where we find a palpable abuse of discretion, or a judgment against the great weight of the evidence. Davenport v. Davenport, 178 Tenn. 517, 160 S.W.2d 406; State ex rel. Parker v. Parker, 191 Tenn. 564, 235 S.W.2d 580."