Ex parte THOMAS

Ex parte THOMAS
1951 OK 357
238 P.2d 806
205 Okla. 451
Case Number: 34688
Decided: 12/11/1951
Supreme Court of Oklahoma

(Syllabus.)

¶0 PARENT AND CHILD - CUSTODY OF CHILDREN - Welfare of child paramount consideration - Finding that best interest of child subserved by placing its custody with mother not against clear weight of evidence. In a contest between a mother and daughter over an infant child of the daughter for its custody, the welfare of the child is the paramount consideration in determining which party is entitled to its custody, and where the finding of the trial court is that the best interest of the child will be subserved by placing its custody with its mother, and such finding is not against the clear weight of the evidence, the judgment of the trial court will be affirmed.

Appeal from District Court, Stephens County; Arthur J. Marmaduke, Judge.

Habeas corpus proceedings brought by Geneva Bott to obtain possession of her minor child. Judgment for petitioner, respondents appeal. Affirmed.

Hegel Branch, Duncan, for plaintiffs in error.

Clinton D. Dennis, Marlow, for defendant in error.

CORN, J.

¶1 This contest is between the mother and the grandmother of Patsy Ann Thomas, a female of the age of 20 months.

¶2 The grandmother has had custody of the child since its birth, or a short time thereafter, and has furnished all or practically all of the necessities of the child. She is of course attached to her grandchild and bases her claim of right to custody on those facts.

¶3 The mother of the child is now established in a home of her own, and she and her husband are now amply able to provide for the child and are anxious to do so.

¶4 There was some evidence offered as questioning the fitness of the grandmother to be custodian of the child, likewise some testimony questioning the fitness of the mother to have custody of her child.

¶5 The trial court found that the mother was a fit person to have custody of her child and that the best interest of the child directed that it be placed in the custody of its own mother.

¶6 In this appeal the respondents seek reversal on the ground that the judgment is not sustained by the evidence and is contrary to law.

¶7 We have examined the record and find no showing therein sufficient to reverse the conclusion of the trial court that the mother of the child is a fit person to have custody of her child. The record shows beyond question that petitioner and her husband are now well able to support the child.

¶8 From the record presented the grandmother is to be commended for the care and attention she gave this child during its infancy when doubtless it was for the best interest of the child that it be in her care and custody, but under the facts in this case no claim she might have on the child can be recognized as against its mother, when the mother is now in a position to properly care for it as she should.

¶9 In view of the findings of the trial court and our approval thereof, we find it unnecessary to further detail the evidence. The essential facts which we have set out are sufficient to support our conclusion. The judgment of the trial court is not against the weight of the evidence, but is in accord therewith.

¶10 Affirmed.

¶11 HALLEY, V.C.J., and WELCH, GIBSON, DAVISON, JOHNSON, O'NEAL, and BINGAMAN, JJ., concur.