Black v. Montgomery

• Decision Date: 25 November 1919
• Docket Number: 1 Div. 346
• Citation: 84 So. 308,17 Ala.App. 245
• Parties: BLACK et al. v. MONTGOMERY.
• Court: Alabama Court of Appeals

84 So. 308

17 Ala.App. 245

BLACK et al. v. MONTGOMERY.

1 Div. 346

Court of Appeals of Alabama

November 25, 1919

Appeal from Probate Court, Monroe County; M.M. Fountain, Judge.

Lonziann Montgomery brought habeas corpus against Jimmie Black and Mary Ranaldson, in separate actions for the custody of her children which were consolidated and tried together resulting in a judgment for the plaintiff, from which the defendants appeal. Affirmed.

The facts sufficiently appear from the opinion.

W.G McCorvey and L.S. Biggs, both of Monroeville, for appellants.

Barnett Bugg & Lee, of Monroeville, for appellee.

BRICKEN P.J.

Habeas corpus proceedings filed by appellee to recover the custody and possession of her two children Leo Riley Montgomery aged five, a boy, and Ettalola Montgomery aged two, a girl. These children were in the custody or possession of appellants Jimmie Black and Mary Ranaldson, respectively.

The case was tried by the court without a jury and judgment rendered in favor of petitioner awarding her, the mother custody and possession of her two children. This judgment of the court is the sole assignment of error presented for review.

In this case, as in all cases where the trial is had by the court without a jury, and where the evidence was ore tenus or partly so, the judgment or findings of the trial court will not be disturbed unless the conclusion reached by the court so sitting is plainly contrary to the great weight of the testimony. McCay v. Parks, 201 Ala. 647, 79 So. 119, and cases cited.

Bearing in mind the oft-pronounced rule in cases of this character that the welfare of the child is the paramount consideration, yet we cannot be unmindful of another principle of law, and humane provision, to the effect that prima facie the right of the parent to the custody of the infant should not be interfered with unless, as before stated, the best interest of the child or children will be manifestly observed by so doing. In other words, the welfare of the child or children is the primary consideration, though not always controlling, in determining whether the custody and possession assailed shall be disturbed. Where the controversy is between the parent on the one side and parties bearing no relation by ties of blood or otherwise on the other, as here, the natural ties of affection and sympathy existing between parent and child, though of an inferior race, or lowly condition, must be considered and should not be ignored in determining what is the best interest of the child. Cook...