O'Neal v. O'Neal

48 So. 623, 95 Miss. 415

Opinions

Nletcher, J.,

delivered the opinion of the court.

On July 27, 1908, the chancellor on a habeas corpus hearing, after full proof, rendered a decree awarding to appellee the temporary custody of her infant until the January, 1909, term of the chancery court, at which term she was required to present herself and child to the court, there “to receive and abide by such further orders pertaining to the custody of said child as at that time shall appear to be to the best interests of said child.” The court further permitted the appellant, father of the child, to visit it at all reasonable times. It,was evidently the view of the chancellor that this child of- tender years could safely be-intrusted to its mother for a time at least, provided she proved herself able to support it and demonstrated her fitness to rear it. The court, as we think, wisely reserved the right, after the lapse of a six months’ probationary period, to change the custody of the child in case the mother failed in her parental duty.

An examination of this voluminous record, abounding in charges and countercharges, criminations and recriminations, convinces us that the chancellor’s view was correct. We need not exhaustively review the testimony. Suffice it to say that many of the charges against both husband and wife were not satisfactorily proved, and we think that neither litigant can be said to have demonstrated their pre-eminently superior fitness as a parent. True, the father is financially far better qualified to give the child the comforts, if not the luxuries, of life; but balanced against this consideration is the powerful influence of a mother’s love and tenderness. The child is but two years old, and we think that at such an age the interest of the infant will not suffer in the arms of a mother, though she eats only the bread of comparative poverty.

We commend the action of the chancellor, and affirm his decree so far as may be under the anomalous situation that has arisen. This situation is due to the fact that the chancellor’s decree was superseded and the custody of the child retained by the father. The probationary period has now expired, so that the decree cannot now be literally complied with. However, upon the return of the cause to the chancery court, a supplemental decree can be entered in vacation, if the chancellor shall so desire, creating a new period of probation, and directing the mother and child to report to the next or some subsequent term of the court, in accordance with the manifest scheme of the decree appealed from. The custody of the child will, upon the filing of the mandate in the court below, be returned to appellee, there to rest until further directed by the chancery court.

Affirmed and remanded.