PHELPS, J.
This is a habeas corpus action by a father for the- custody of his six and a half year old son. The defendant is the widow of plaintiff’s deceased brother. A different trial judge from the present one, in a former action, held for the defendant, leaving the child with her. In a few months the- plaintiff then filed the present action, 'and on the hearing much evidence and many witnesses were heard. No -order was made at that time, and subsequently another hearing -was had, at which the plaintiff adduced more evidence. The trial judge in the instant case likewise held for the defendant, and the plaintiff appeals. The defendant also appealed from a certain portion of the judgment, but that phase of the case will be discussed later.
The child’s mother died within ten hours after its birth. This left the plaintiff with two other small children. Plaintiff had several brothers or sisters, who had children of their own, but there was one brother and his wife (defendant) who had no children. A family council was held, resulting in the plaintiff’s consent that said brother and the defendant take the child and rear it. There was reliable evidence at the hearing to the effect that the plaintiff at that time intended to give the child permanently to his brother and defendant, and promised never to reclaim it, and so no adoption proceedings were had. Children are not legally subject to barter or sale or gift in this state and so this question, over whieh the parties argue so much, is for present purposes immaterial.
Thus, when the child was but three days old, the plaintiff’s brother and the brother’s wife, the defendant, took it to their home. It was sickly and weak and they nursed it carefully into a state of good health, not without medical expense and care. In all ways they treated the child as if it were their own, and gave it the same loving care and affection. Three years after the child’s birth the defendant’s husband died, and the defendant continued caring for it in the same manner. She moved into the city of Wapanueka and there- bought a home in order that the child could be afforded better educational facilities. In spite of plaintiff’s apparent lack of interest throughout the years, as hereinafter recounted, the defendant has at all times encouraged the boy to love and respect his father, has never denied 1he plaintiff the right or opportunity to visit the child or take it with him temporarily, and has frequently taken it for visits to the home of plaintiff, who lives but a mile and a half from the above city, and on those occasions has stayed a day or more. She is of excellent moral character. Her financial condition is moderate -and probably slightly better than that of the plaintiff. The liberality of attitude and fairness of conduct demonstrated by this woman toward the plaintiff, his family, and the child, is seldom equaled in the records appearing before this court in similar cases. There can be no doubt about the present welfare of the child in her custody, which, to it, is its natural environment.
As to the plaintiff, and candidly reporting the record before us, the following appears
to be the situation. He is a man of good moral character and moderate financial means. During the lifetime of the child he has contributed the sum of five dollars toward its upkeep’. When he has hauled firewood to the home of defendant, to help keep the boy warm, he has charged her for it. He has never given the boy a Christmas present, except he believed that once he gave him a quarter, “not positive whether I did or not.” He kept the little boy’s clothing, and also his shoes, that he wore on one occasion to plaintiff’s house', and has never returned them. His brother, the child's uncle, had contributed a small monthly sum toward the support of the child, and during the six months preceding the trial had sent it to plaintiff for the child. Plaintiff has kept this money and has failed to account for it except to say that his reason for not turning it over was because the boy is distant to him in attitude and does not appreciate anything he gives him. A group of such facts, including others not mentioned, is all that the trial court had with which to form his judgment.
The record reveals that from the viewpoint of his own present welfare the boy is in ideal surroundings. Many witnesses, including some of the plaintiff’s relatives, testified that it would be highly injurious to the child at his tender age to make such a sudden and drastic change in his environment and status of life as would be necessary if this judgment were reversed. These statements were largely opinions ■ and conclusions, but their reception is not urged as error, and furthermore, facts were tesli-fied to in support thereof. . In the plaintiffs home there are two small children and a grown son of his own, and there are no women other than his own daughter-in-law, who has a babe in arms, of her own, to care for at present.
In appealing, the plaintiff proceeds largely on the assumption that section 1685. O. S. 1931, providing in substance that the father of a legitimate unmarried minor is entitled to its custody, is controlling of the case. But in Bishop v. Benear, 132 Okla. 116, 270 P. 569, we held that it is also proper to be guided somewhat by section 1504, O. S. 1931, providing that:
“In awarding the custody of a minor, or in appointing a general guardian, the court or judge is to be guided by the following considerations:
“First. By what appeals to be for the best interests of the* child in respect to its temporal and its mental and moral welfare; and if the child be of sufficient age to form an intelligent preference, the court or judge may consider that preference in determining the question.”
A review of our former decisions, which in detail is not necessary here, reveals that the considerations affecting the question in cases of this kind are the welfare of the child, and natural and legal rights of the parent, and the rights of those who have for years occupied the position of parents. Of these, we said in the Bishop Case, supra, the welfare of the child is the chief consideration. See syllabus 4 thereof, which is paraphrased in the 3d syllabus hereof. Also, for other cases where the welfare of the child was accorded superiority over the claims of the parent, see Hamann v. Miesner et ux., 148 Okla. 50, 297 P. 252; Morris v. Morris, 81 Okla. 222, 198 P. 70; Richards v. Christy, 150 Okla. 221, 1 P. (2d) 168; Ex parte Lebsack, 168 Okla. 299, 32 P. (2d) 923; Ex parte Yahola, 180 Okla. 637, 71 P. (2d) 968. In the last-cited case we said:
“The right of the father to the custody of his minor child, when its mother is dead, is well recognized. Usually the fact of such close relationship is accorded almost ■ exclusive importance in determining who shall have the custody of the child. The rule, however, is not without its exceptions. It is not an absolute right, but one which must at all times be qualified by considerations affecting the welfare of the child.
“The conflict illustrated by the present case has, in one form or another, been before this court frequently. In some cases the father has prevailed and in other cases he has been denied the custody. Each ease depends upon its own facts and circumstances.
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PHELPS, J.
This is a habeas corpus action by a father for the- custody of his six and a half year old son. The defendant is the widow of plaintiff’s deceased brother. A different trial judge from the present one, in a former action, held for the defendant, leaving the child with her. In a few months the- plaintiff then filed the present action, 'and on the hearing much evidence and many witnesses were heard. No -order was made at that time, and subsequently another hearing -was had, at which the plaintiff adduced more evidence. The trial judge in the instant case likewise held for the defendant, and the plaintiff appeals. The defendant also appealed from a certain portion of the judgment, but that phase of the case will be discussed later.
The child’s mother died within ten hours after its birth. This left the plaintiff with two other small children. Plaintiff had several brothers or sisters, who had children of their own, but there was one brother and his wife (defendant) who had no children. A family council was held, resulting in the plaintiff’s consent that said brother and the defendant take the child and rear it. There was reliable evidence at the hearing to the effect that the plaintiff at that time intended to give the child permanently to his brother and defendant, and promised never to reclaim it, and so no adoption proceedings were had. Children are not legally subject to barter or sale or gift in this state and so this question, over whieh the parties argue so much, is for present purposes immaterial.
Thus, when the child was but three days old, the plaintiff’s brother and the brother’s wife, the defendant, took it to their home. It was sickly and weak and they nursed it carefully into a state of good health, not without medical expense and care. In all ways they treated the child as if it were their own, and gave it the same loving care and affection. Three years after the child’s birth the defendant’s husband died, and the defendant continued caring for it in the same manner. She moved into the city of Wapanueka and there- bought a home in order that the child could be afforded better educational facilities. In spite of plaintiff’s apparent lack of interest throughout the years, as hereinafter recounted, the defendant has at all times encouraged the boy to love and respect his father, has never denied 1he plaintiff the right or opportunity to visit the child or take it with him temporarily, and has frequently taken it for visits to the home of plaintiff, who lives but a mile and a half from the above city, and on those occasions has stayed a day or more. She is of excellent moral character. Her financial condition is moderate -and probably slightly better than that of the plaintiff. The liberality of attitude and fairness of conduct demonstrated by this woman toward the plaintiff, his family, and the child, is seldom equaled in the records appearing before this court in similar cases. There can be no doubt about the present welfare of the child in her custody, which, to it, is its natural environment.
As to the plaintiff, and candidly reporting the record before us, the following appears
to be the situation. He is a man of good moral character and moderate financial means. During the lifetime of the child he has contributed the sum of five dollars toward its upkeep’. When he has hauled firewood to the home of defendant, to help keep the boy warm, he has charged her for it. He has never given the boy a Christmas present, except he believed that once he gave him a quarter, “not positive whether I did or not.” He kept the little boy’s clothing, and also his shoes, that he wore on one occasion to plaintiff’s house', and has never returned them. His brother, the child's uncle, had contributed a small monthly sum toward the support of the child, and during the six months preceding the trial had sent it to plaintiff for the child. Plaintiff has kept this money and has failed to account for it except to say that his reason for not turning it over was because the boy is distant to him in attitude and does not appreciate anything he gives him. A group of such facts, including others not mentioned, is all that the trial court had with which to form his judgment.
The record reveals that from the viewpoint of his own present welfare the boy is in ideal surroundings. Many witnesses, including some of the plaintiff’s relatives, testified that it would be highly injurious to the child at his tender age to make such a sudden and drastic change in his environment and status of life as would be necessary if this judgment were reversed. These statements were largely opinions ■ and conclusions, but their reception is not urged as error, and furthermore, facts were tesli-fied to in support thereof. . In the plaintiffs home there are two small children and a grown son of his own, and there are no women other than his own daughter-in-law, who has a babe in arms, of her own, to care for at present.
In appealing, the plaintiff proceeds largely on the assumption that section 1685. O. S. 1931, providing in substance that the father of a legitimate unmarried minor is entitled to its custody, is controlling of the case. But in Bishop v. Benear, 132 Okla. 116, 270 P. 569, we held that it is also proper to be guided somewhat by section 1504, O. S. 1931, providing that:
“In awarding the custody of a minor, or in appointing a general guardian, the court or judge is to be guided by the following considerations:
“First. By what appeals to be for the best interests of the* child in respect to its temporal and its mental and moral welfare; and if the child be of sufficient age to form an intelligent preference, the court or judge may consider that preference in determining the question.”
A review of our former decisions, which in detail is not necessary here, reveals that the considerations affecting the question in cases of this kind are the welfare of the child, and natural and legal rights of the parent, and the rights of those who have for years occupied the position of parents. Of these, we said in the Bishop Case, supra, the welfare of the child is the chief consideration. See syllabus 4 thereof, which is paraphrased in the 3d syllabus hereof. Also, for other cases where the welfare of the child was accorded superiority over the claims of the parent, see Hamann v. Miesner et ux., 148 Okla. 50, 297 P. 252; Morris v. Morris, 81 Okla. 222, 198 P. 70; Richards v. Christy, 150 Okla. 221, 1 P. (2d) 168; Ex parte Lebsack, 168 Okla. 299, 32 P. (2d) 923; Ex parte Yahola, 180 Okla. 637, 71 P. (2d) 968. In the last-cited case we said:
“The right of the father to the custody of his minor child, when its mother is dead, is well recognized. Usually the fact of such close relationship is accorded almost ■ exclusive importance in determining who shall have the custody of the child. The rule, however, is not without its exceptions. It is not an absolute right, but one which must at all times be qualified by considerations affecting the welfare of the child.
“The conflict illustrated by the present case has, in one form or another, been before this court frequently. In some cases the father has prevailed and in other cases he has been denied the custody. Each ease depends upon its own facts and circumstances. Ordinarily, even though the financial interests of the child might be better served elsewhere, the custody is left with the father if he is able to reasonably caro for the child, and if he shows himself to be a fit person to be intrusted with its custody.
“But where his conduct has evidenced a state of indifference to the child, as opposed to the ability, good character, and love possessed and manifested by his opponents who have reared such child from babyhood, the court may be justified in finding that the best interests of the child would be more properly, served by leaving it with the latter.”
What may serve the best interests of the child at its present tender age may not be necessary at all to its best interests later. It is apparent from the record that the trial judge attached some importance to the age-of the child. We are not prepared to say that he erred, having, as he did, the parties, the child, and the witnesses before him,.
and having that opportunity of personal study of the parties which the record never affords. As was said in the Richards Case, supra:
“The trial court saw the witnesses, heard the testimony, saw the child, and was familiar with all surrounding circumstances and was in a much better position to determine what was for the best interest of the child, than this court.”
In Ex parte Lebsack, above, it was observed that:
“The trial court had all the parties before it and had an opportunity to observe their conduct and demeanor, and now, considering that the welfare of the child, as well as the wishes of the parties, is of importance, we are not willing to say that the judgment is contrary to the weight of the evidence or contrary to law.”
And in the same manner of reasoning, in Hamann v. Miesner, supra, and Panther v. Panther, 147 Okla. 131, 295 P. 219, we said:
“The presiding judge herein was peculiarly well informed as to whose custody would inure to the best interest and welfare of the minor children.”
Three different hearings within a short period of time were had on this matter, and two different district judges decided that at least for the time being the child should be left where it is. The record reveals that the trial judge did not disregard the rights of the parent, but, on the contrary, attached considerable weight thereto and arrived at his decision nevertheless.
The plaintiff having appealed, the defendant also appealed by cross-petition in error, complaining of that part of the judgment requiring her to take the child to the' home of plaintiff ’at least once a week, and she asserts that this will entail considerable trouble and expense to her. We do not agree. The parties live but a mile and a half apart, and, at any rate, it will be only a slight increase in the burden which she has been assuming, voluntarily. It is to be hoped that the parties will take advantage of this opportunity to heal whatever breach has been caused by the litigation and for the sake of the boy subordinate their own wishes to the end that he be given a fair chance with this world which he so recently entered, and against which he cannot successfully cope without the understanding and unselfish consideration of those surrounding him.
The judgment is affirmed.
OSBORN, O. X, and RILEY, CORN, HURST, and DAVISON, JJ„ concur. WELCH. X, dissents. BAYLESS, V. C. X, and GIBSON, X, absent