The opinion
On Application for Rhearing.
PELHAM, J.
After the opinion handed down by the Supreme Court (present term) and an application for rehearing filed, this case was transferred to the Court of Appeals under and by authority of the jurisdiction given to this court by the act of the Legislature approved March 9, 1911 (Acts 1911, pp. 95, 96 § 2), establishing the Court of Appeals.
We have carefully examined the evidence as set out in the record, and, Avhile the weight of it may be said to be in favor of appellees contention as to the intention Avith which the grandfather gave the custody of the child to the father a short time before this proceeding was instituted, and Avhile it is also true that the weight of evidence favors appellees further contention that the child was committed to the care and custody of the grandparents by the father with an understanding that the grandparents should retain the custody of the child “and raise it until it Avas grown,” it is nevertheless a fact, as stated by the learned justice in delivering the original opinion in this case, that the evidence on these matters is in conflict, for the father gives pointed denial to each of such contentions in his evidence set out in the record. *249 The father positively denies that he gave the custody of the infant to the grandparents for any definite period, and this alone, without a necessity for pointing out other differences, distinguishes this case from one of the cases cited by appellee, and especially relied upon in the brief filed on application for rehearing, viz., Stringfellow v. Sommerville, 95 Va. 701 , 29 S. E. 685 , 40 L. R. A. 623. In this case last cited it was held that, where the father had acquiesced in and had in fact been a party to placing the infant in the custody of its aunts to remain until reared by them, the court would not, on the application of the father, after the child had grown into the new life around her and become aliened, or a stranger to her paternal home, disturb the aunts’ custody of the child because of a careful regard of the court to the child’s welfare, deeming such a change not to the best interests of the child under the proof in that case. The tender years of the child in this case also distinguishes the two cases, as one of such extreme youth could not be said to have become alienated from her father’s home and to have grown into a new life and formed such strong ties of affection for others that her welfare will be best served by separating her from the parental care of the petitioner.
That the best interests and 'welfare of the child is the primary consideration controlling the courts in determining all disputes as to the custody of minors is a settled rule. —Brown v. Brown, 2 Ala. App. 461 , 56 South. 589 ; Saunders v. Saunders, 166 Ala. 351 , 52 South. 310 ; Pearce v. Pearce, 136 Ala. 188 , 33 South. 883 ; Brinster v. Compton, 68 Ala. 299 ; Woodruff v. Conley, 50 Ala. 304 . That the prima- facie right to the custody of the child is always in its parents over all other persons, however, is recognized in the above-cited cases, and all other well-considered cases on the subject, and, unless the best *250 interests and well-being of the child outweighs this prima facie right, the paternal relation will control as against the claims of another. The prima facie right of parents to the custody of minor children not being an absolute right to which they can under any and all circumstances assert their claims and have accorded to them the custody of a minor child, it necessarily results that each case must depend on the facts and circumstances of that particular case.
The father in this case denies that he gave the custody of the child to the respondents in the petition for any definite period, or “until it was grown,” nor could the the respondents gain any vested rights thereby had he done so. His. having made or consented to such an arrangement and acquiesced in it for such a period that the best interests and welfare of the child would not be served by disturbing the custody would, of course, govern, as in the case of Stringfellow v. Somerville, supra, but it would be due to a consideration of the welfare of the child, and not by reason of any rights acquired by an agreement to dispose of the child, for children are not chattels- that may be disposed of by parents to other persons like property.
The ancient Roman law holding children to be the property of their fathers and subject to disposition by them as things and not as persons does not obtain in this country, and it would be contrary to public policy to make such a disposition of a child, and any transfer of the custody by a parent of his child to- another is pre- - sumed to be a temporary surrender, unless the contrary clearly appears, which the parent may terminate and assert his parental rights and reclaim the child at any time when the welfare of the child is not thereby interfered wit h.—H ermandez v. Thomas, 50 Fla. 522 , 39 South, 641 , 2 L. R. A. (N. S.) 203; 111 Am. St. Rep. 137 , *251 7 Ann. Cas. 466; Miller v. Miller, 123 Iowa, 165 , 98 N. W. 631 ; Brooke v. Logan, 112 Ind. 183 , 13 N. E. 669 , 2 Am. St. Rep. 177 ; Washard v. Medaris, 34 Ind. 168 ; State v. Libbey, 44 N. H. 321, 82 Am. Dec. 223 .
It is not necessary to enter into an extended summary of the evidence. It is enough to say that the petitioner is shown to be the father of the child, and having a prima fac-ie right to its custody if a person fit, suitable, and competent to be intrusted with the custody, care maintenance, and education of the child, should be given that custody unless the welfare of the child forbids. The prima facie parental right to the child’s custody by petitioner is not overcome by the facts presented by the record in this case.
The occasional indulgence in intoxicants shown by the evidence set out is not sufficient to deny petitioner the custody of his child. —Bryan v. Bryan, 34 Ala. 516 ; L. & N. R. R. Co. v. Hall, 131 Ala. 169 , 32 South. 603 . The other case especially relied upon by appellees in their brief —(Kelsey v. Green, 69 Conn. 291 , 37 Atl. 679 , 38 L. R. A.) is not in point. The contention there was not between the father with parental rights on the one hand and another party, but between two1 guardians appointed by different courts, and the father’s right as a prima facie consideration or otherwise was not involved. Nor is there anything decided in that case not in harmony with our holding.
There is no merit in the contention of appellees asserted in their application, to the effect that the order of the chancellor must be affirmed because there is no formal order of denial by the record to the return to the writ. In the cases cited the question was one of pleading where the truth of the matter set up by the pleader was admitted by the contrapleader under the well-known rules of pleading. Here it is manifest from the record *252 that both parties tried the case without objection on an issue joined on the merits, and, after hearing the evidence introduced by both parties and argument of counsel, a judgment on the merits was rendered.
The return is only presumed to be true until its truth is disproved by the evidence, or its effect otherwise avoided. —Ex parte Hunter, 39 Ala. 560 ; Hurd on Habeas Corpus, 263.
The application for a rehearing is denied.