The opinion
I dissent. My reasons for dissenting are the same as hitherto expressed in this case in my dissenting opinion. I *Page 186
see no reason for repeating what was there said. In addition by way of elaboration in view of what was developed on rehearing, I make the following observations: We all agree that the paramount consideration in these cases is the welfare of the child. We also agree that there is a presumption that it is for the best interests of a child to be raised by its natural parent or parents. I think we would also agree that each case must stand on its own facts as to when that presumption is overcome. In this case I think it is overcome by showing that from birth this child was raised in this family where his mother had her home until she died; that it is happy there and well cared for; that this family consists of its relatives — to wit, aunt, uncle and grandfather; that, even giving the applicant the benefit of the affidavits and the most favorable view of the evidence, the removal of the child would be from an environment in which it is contented and well cared for to one of uncertainty; that taking a less favorable view of the evidence even with mollification of what was said in the former prevailing and my dissenting opinion as to the short comings of the father, the child would go into an environment where it would have to adjust to a stepmother whose paramount interest would probably be in her own child, and a father whose conduct, even after he came out of the army, was such that the quality and intensity of his interest in the child is doubtful. Under such circumstances, I think the presumption that the welfare of the child would be best served by giving it to its father is overcome. I think it should take less evidence to overcome the presumption when the application is not to take a child from its parent but to take it from a satisfactory home where it has been since birth and in which it is happy to give it to a parent who has never had custody of it and, under the most favorable interpretation of the evidence, whose home and interest are of uncertain and doubtful quality as far as environment for a child of tender years is concerned. There the principle should be "leave very well alone." *Page 187