This case is before us after argument pursuant to rehearing granted.
The history of the case is stated in the original opinion except that it does not state that the child was only four or five months old when the father delivered it to the respondents to be cared for and reared by them, which obligation they have continued to most devotedly perform for some nine years without contribution from the parents.
Respondents were not parties to the suit between the father and mother in the State of Mississippi. In that case only the right to the custody of the child as between the father and mother was involved.
While an infant may not acquire a legal domicile in Florida while the father is domiciled elsewhere (Beekman v. Beekman,
In Danson v. Danson,
"The plaintiff in error states that `The simple question before this court is whether the father, plaintiff in error, is entitled to the custody of his child.
"`Under the contentions made in the return, three sub-questions arise:
"1. `Whether the decree signed by Judge Branning of the Circuit Court of Palm Beach County, awarding the child to his father, can be set aside collaterally or only by appeal and shall remain in force until reversed by this court.
"2. Whether any collateral attack can be made upon said decree or void its efficacy and full force by a decree made subsequently on a petition for adoption of the child. Can one court, in this collateral way, destroy the decree of the court first having jurisdiction?
"3. If it could be destroyed in this way, can a decree of the court impart to a mother by adoption rights and powers that the natural mother does not possess?'
"In the decree of the Circuit Court for Palm Beach County granting the petitioner a divorce from his wife and awarding custody of their minor son to the father, petitioner here, such commitment of the minor son to the father's custody was expressly made `until the further order of the court.' As the welfare of the child is the controlling consideration, the quoted limitation in the decree was perhaps unnecessary in view of the jurisdiction and duty of courts in awarding the custody of minor children. In this case the father who obtained the decree in Palm Beach County awarding him the custody of the child, brings this habeas corpus proceeding in Duval County to obtain custody of the child. The proceedings for the adoption of the child by *Page 414 Effie W. Schumacher may or may not be valid as against the father and are not considered here. In moving, upon the return or answer to the writ, that the infant child be committed to him, the petitioner admitted the averments of the return or answer to be true.
"It appears from the return or answer admitted to be true that the child was with the father's consent in the care and custody of Effie W. Schumacher within the jurisdiction of the Circuit Court for Duval County when on this habeas corpus proceeding brought by the father, the order was made by that court for the custody of the minor child. Without considering whether the answer taken as true and the letters from the petitioner attached as exhibits show the father to be an improper person to have the custody of the minor child, the father is now in the United States military service and the person to whom the petitioner indicates he would give the child is shown to be an improper person for such custody. For this reason the award of the present custody of the child to a suitable person by the court having jurisdiction is not clearly wrong; therefore, the judgment of award is affirmed."
So it is seen that in that case the Court refused to hold the Circuit Court of Duval County bound by the former judgment of the Circuit Court of Palm Beach County.
In Robertson v. Bass,
"In controversies of this character, three matters are to be regarded: the rights of the parent, the rights and interests of the person or persons to whom the care and custody of the infant child has been given by the parent, and the welfare of the child. The first of these may be forfeited by misconduct or voluntary reliquishment; the agreement to relinquish is not absolute and irrevocable, but when a contention *Page 415 arises much will depend on the characters of the parties, the length of time elapsed and the circumstances of the particular case; all however subordinate to the interests of the child.
"In the case before us the children are happily placed where they are; the stepfather is a stranger to them and has a large family of his own and has but recently married the mother; it is problematical, therefore, what might be the condition in the new surroundings. After such length of time, the ties of companionship have likely become stronger than the ties of blood and the probabilities of happiness seem stronger where they are.
"In holding with the Circuit Judge that it would be unwise at this stage, at least, to make the change, we are supported by abundant authority. Verser v. Ford,
In Marshall v. Reams,
"In all contentions for the custody and control of minor children the benefit and welfare of the child are the principal matters which guide and control the courts in awarding custody. The ties of nature and of association, the character of the applicant for the child, its age, health and sex, the moral or immoral surroundings of its life, the benefits of education and development, the pecuniary prospects, *Page 416 as well as other considerations, enter into the judical determination."
In Sinquefield v. Valentine, et al.,
"Undoubtedly, the father has primarily, by law as by nature, the right to the custody of his children. This right is not given him solely for his own gratification, but because nature and the law ratifying nature assume that the author of their being feels for them a tenderness which will secure their happiness more certainly than any other tie on earth. Because he is the father, the presumption naturally and legally is that he will love them most, and care for them most wisely. And, as a consequence of this, it is presumed to be for the real interest of the child that it should be in the custody of its father, as against collateral relatives, and he, therefore, who seeks to withhold the custody against the natural and legal presumption, has the burden of showing clearly that the father is an unsuitable person to have the custody of his child; or that, however moral a man he may be, he had abandoned his child, contributing nothing to itssupport, taking no interest in it and permitting it to remaincontinuously in the custody of others, substituting such others in his own place so that they stand in loco parentis to the child and continuing this condition of affairs for so long a time that the affections of the child and of the foster parents have become mutually engaged to the extent that a severance of this relationship would surely result in destroying the best interest of the child." (Underscoring supplied.)
The record in this case shows the existence of the last mentioned condition, which we have emphasized by underscoring. *Page 417
The Chancellor made findings of fact as follows:
"It appears from the testimony submitted that the petitioner and one George J. Bourn were married to each other on Nov. 10th, 1927, in the State of Mississippi. That on the 20th day of October, 1928, a girl child was born to them. Said child is Amy Earline Bourn, the subject of this controversy.
"At the time of the birth of said child, or shortly thereafter, it was discovered that the child's mother, the petitioner herein, was ill with tuberculosis. It was decided necessary that she enter the State Tubercular Sanitarium, near Magee, Miss., which she did when the child was quite young. She remained in the sanitarium about six years. She was discharged therefrom about May 1st, 1935.
"It seems there is a hiatus as to the care of the infant between the time the mother entered the sanitarium and the time she was placed with the respondents herein by her father. The respondent, Allye Hinsey, is a sister of the child's father. The child was less than a year old when delivered to respondents. Petitioner testified she never consented to, nor was she willing that the child be placed with respondents. The fact and circumstances in the case do not bear out this statement. The mother certainly could not take the child into the sanitarium with her and give it care and attention. The child's father, it appears, is a disabled World War Veteran; that his only income is a total disability pension of One Hundred Dollars per month. The Court gathers from the testimony that the afflictions and habits of the father would very decidedly unfit him for the care and custody of a very young child, especially a girl. The testimony shows that the child's maternal grandparents, William Henry Stewart and wife, are tenant farmers in Mississippi; that they own no land or home of their own; that their income is what they can make on rented *Page 418 land from year to year; that they do not rent the same place every year. Apparently they did not take the care and custody of the child when the child's mother entered the sanitarium.
"Respondent, Mrs. Hinsey, testified that she visited her brother and her mother in Mississippi about the time the child's mother was preparing to enter the santarium. That her mother is 74 years of age and resides with this brother. That the child was with them on this visit. During this visit she talked with the child's maternal grandmother, Mrs. Stewart; that Mrs. Stewart told her that she, Mrs. Stewart, could not take the care and custody of the child as she had to work in the field. Mrs. Hinsey further testified that, at this time it was agreed among them, including the child's father and mother, that the child be placed with respondents. Shortly after this the father brought the child to Quincy, Florida, and delivered it to them. Mrs. Hinsey further testified that in 1932 she received a letter from the child's mother, in which letter the mother stated that she was coming out of the hospital; that she and her husband were buying themselves a home, and that they wanted the child. She further testified that the father of the child came and took the child back to Mississippi; that they kept her, the child, about three months and that the father brought her back to Quincy, Florida, and placed her with the respondents. Mrs. Hinsey further testified that in 1933 she took the child to Mississippi to visit her mother and her people. That on this visit the child's mother told her, Mrs. Hinsey, that she never intended to try to live with her husband again, and that she wanted her, Mrs. Hinsey, to have the baby.
"From all this it is pretty clear that the child was not placed in the care and custody of respondents against the will and consent of petitioner.
"Shortly after the petitioner was discharged from the *Page 419 sanitarium in Mississippi she asked for the custody of her daughter. The respondents applied to the Judge of the Circuit Court in and for Gadsden County, Florida, for a decree of adoption. Petitioner protested and the decree of adoption was denied.
"About June 12th, 1935, the petitioner, Irene Stewart Bourn, filed her bill of complaint in the Chancery Court for Marion County, Mississippi, against her husband, George J. Bourn. In this bill of complaint she charged the defendant, among other things, with being an alcoholic and drug addict and of being guilty of adultery. The defendant filed an answer in which he charged the complainant with infidelity. The cause came on for hearing and was heard by the Chancellor. A decree was rendered by the Chancellor on October 11th, 1935. The decree recites, in substance, that the Court has jurisdiction of the complainant and defendant and of the minor child of said parties. The Court found that both complainant and defendant were fit, suitable and proper persons to have the custody of said child. The Court decreed that the complainant have the custody of said child from September 1st to June 1st, and that the defendant have the custody from June 1st to September 1st, each twelve months. The Court further decreed that the defendant pay to the complainant the sum of $35.00 each month for support and maintenance. The Court further decreed that the defendant, George J. Bourn, within thirty days from that date deliver custody of said child to the complainant, Irene Stewart Bourn.
"Attorneys for petitioner in this cause insist before this Court, under the laws of comity, is bound to give full faith and credit to the decree of the Chancery Court of Marion County, Mississippi, this on the theory that the domicile of the parents is the domicile of their minor child. This doctrine will hold good provided the parents over which the *Page 420 court has jurisdiction, or either one of them has the control of the minor child.
"In the Chancery Case in Marion County, Miss., the parents nor either one of them had control of the custody of said minor, and during the whole of the proceedings in the said chancery court in Marion County, Miss., the said minor was in the custody of the respondents in this cause, George W. Hinsey and Allye Hinsey, at Quincy in Gadsden County, Florida. We hold that the Chancery Court for Marion County, Miss., had no jurisdiction of the said minor child.
"The defendant, George J. Bourn, in undertaking to comply with the decree of the Chancery Court of Marion County, Miss., on the 14th day of January, 1936, filed his petition for a writ of habeas corpus in the Circuit Court in and for Gadsden County, Florida, praying that the custody of said minor child be awarded to him. The writ issued and full hearing had. The judgment of the Court was that the minor child be remanded to the custody of respondents in the instant cause, G.W. and Allye Hinsey."
Whereupon he remanded the child to the custody of the respondents.
The writer of this opinion, and other members of the Court who will approve the same, feel that a grave error was committed in the adoption of our former opinion and promulgating the judgment thereon. Much has been said, and may yet be said with all propriety, lauding mother's love and delineating a mother's right to the custody of her child. If there is any feeling or emotion which may be favorably compared with mother's love, it is that cultivated love which flows from the breast of a woman to the child of another woman which child she has taken when it was a helpless, crying infant, to her own arms and held as her *Page 421 own, the child which she has nourished in sickness and in health, which she has watched over and cared for day and night from the time of its early infancy, year after year, until she has come to look upon it as her very own and to feel for it all that tender love and compassion which a mother's heart can know. Not all women can do this, but to those who can it must be a glorious experience.
In this case we have an incident of that sort. The association with, the care for and the constantly reflected love for the child has bound her as closely to the hearts of the Hinseys as she could possibly be bound to the heart of her mother under existing and past existing conditions.
So if we conclude that the respondents on the one side, by their conduct in the care for and association with the child, have as vital an interest in the child as has its natural mother, who has had practically no association with the child and who has become practically a stranger to the child, then certainly we should be guided by the lodestar in all such proceedings as this, to-wit, "What is to the best interest of the child?" When that point is considered there can be no doubt that the best interest of the child demands that it remain with the respondents.
The record shows that the child is as much devoted to the respondents as she could have been to her natural father and mother had she been reared by them.
It is needless for us to repeat here what has already been quoted from the Chancellor's findings as to the relative ability and opportunity of the respective parties to advance the material, social and spiritual welfare of this child. By all these gauges, the Hinseys prevail.
The law and the evidence amply support the findings of the Chancellor and this Court should not assume to overthrow his judgment. *Page 422
For the reasons stated, the opinion and judgment heretofore rendered by this Court should be overruled and the judgment to which writ of error was taken should be affirmed.
ELLIS, C.J., concurs.
