Harris v. Harris

• Decision Date: 24 February 1949
• Docket Number: 7 Div. 935.
• Citation: 39 So.2d 232,251 Ala. 687
• Parties: HARRIS v. HARRIS et al.
• Court: Alabama Supreme Court

39 So.2d 232

251 Ala. 687

HARRIS v. HARRIS et al.

7 Div. 935.

Supreme Court of Alabama

February 24, 1949

C A. Wolfes, of Fort Payne, for appellant.

Leonard L. Crawford, of Fort Payne, for appellees.

LIVINGSTON Justice.

This proceeding was instituted by Ethel Mae Harris for the custody of her infant son, William Jackson Harris, who is now about five years of age. Respondents are William Melford Harris father of the minor, and W. J. Harris, and Effie Harris, the paternal grandparents of said minor.

The cause was tried in the Circuit Court, in Equity, of DeKalb County, and was submitted for final decree on the pleadings and the testimony of witnesses taken by depositions. The rule is, of course, that when a cause is tried in the court below in this manner, this Court indulges no presumption that the trial court correctly found the facts and, on appeal, must sit in judgment on the evidence. Blair v. Jones, 201 Ala. 293, 78 So. 69; Knowles v. Knowles, 246 Ala 228, 20 So.2d 200.

This duty we have performed with a deep sense of responsibility for the best interest and welfare of the infant, whose interest and welfare are paramount and controlling.--Payne v. Payne, 218 Ala. 330, 118 So. 575; James v. James, 242 Ala. 140, 5 So.2d 616; Cronin v. Cronin, 245 Ala. 309, 16 So.2d 714; Hammac v. Hammac, 246 Ala. 111, 19 So.2d 392; Worthy v. Worthy, 246 Ala. 52, 18 So.2d 721; Greene v. Greene, 249 Ala. 155, 30 So.2d 444.

But this does not imply that in dealing with such delicate and often difficult question, the law disregards the natural right of the parent to the custody, companionship, care and bringing up of his or her child, and one who denies such right assumes the burden of proof to sustain the denial.--In Chandler v. Whatley, 238 Ala. 206, 189 So. 751, Mr. Justice Bouldin, writing for the Court, quoted the following from Striplin v. Ware, 36 Ala. 87:

'The law devolves the custody of infant children upon their parents, not so much upon the ground of natural right in the latter, as because the interests of the children, and the good of the public will, as a general rule, be thereby promoted. It is a fair presumption, that so long as children are under the control of their parents, they will be treated with affection, and their education and morals will be duly cared for. When, however, this presumption is removed, and the morals, safety, or interests of the children, strongly require their withdrawal from the custody of the father or mother, the court of chancery (which is the general guardian and protector of all infants within its jurisdiction) will interfere, and place and care and custody of them elsewhere.--2 Kent 205, 220-7; 2 Story's Eq. § 1340; Wellesley v. Wellesley, 2 Bligh. 128-30; DeManneville v. DeManneville, 10 Vesey Jr. 63 etc.; 3 Lead. Cases Eq. (Edit. 1859) 270.

'Although this jurisdiction is firmly established, and seems indispensable to the morals, the good order, and the just protection of civilized society, it is admitted to be one of extreme delicacy, and of no inconsiderable embarrassment and responsibility.--2 Story's Eq. § 1340. So strong is the presumption, that 'the care which is prompted by the parental instinct, and responded to by filial affection, is most valuable of all'; and so great is the reluctance of the court to separate a child of tender years from those who according to the ordinary laws of human nature, must feel the greatest affection for it, and take the deepest interest in its welfare,--that the parental authority will not be interfered with, except in case of gross misconduct, or where, from some other cause, the parent wants either the capacity or the means for the proper nature and training of the child. Where a contest for the custody of a child arises between its father or mother and a third person, the superior claim of the parent ought not, in our opinion, to be disturbed, unless it plainly appears that the interests of the child require it to be set aside.' And in Hammac v. Hammac, 246 Ala. 111, 19 So.2d 392, 393, we said:

'Where a child is of such tender age as to require the care and attention that a mother is especially fitted to bestow upon it, the mother, rather than the father, is the proper custodian, unless, of course, for some reason she is unfit for the trust.'

The decree of the trial court awarded the custody and...