The opinion
Carleton Harris, Chief Justice dissenting. The cardinal rule in deciding child custody cases, so often stated as to need no citation of authority, is that the court makes its determination in accordance with the best interests of the child.
I cannot consider, under the testimony in this case, that the little boy’s best interest is served by his custody being awarded to the father. It appears, from the evidence, that, although he had only been ordered to pay $30.00 per month for the support of the child, Payne was frequently tardy in making these payments, and there is evidence that he was at one time behind in the amount of $120.00. When the little boy, Dean, was born, the government paid part of the hospital expenses, and Payne’s wife and her mother paid the balance. Apparently, no support has been paid at all since July, 1965. This father, according to the record, had not seen this child from the time that Dean was two weeks old until the time of this court hearing. Payne’s present wife had never seen the child before the court hearing.
The majority opinion is somewhat critical of the witnesses who testified to the effect that appellant is not a proper person to have the -custody of his son, mentioning that this testimony is “manifestly tinged with venom.” I can only point out that the Chancellor saw these witnesses when they testified, and, of course, had a much better opportunity to determine which witnesses were telling the truth. He reached the conclusion that Payne was not a proper person to have custody of the child, and that the little boy’s welfare would he best served by leaving his custody with Reverend and Mrs. Jones.
It is true that there is no testimony in the record relating to the Joneses, their character, or their suitability for custody of the youngster.
Accordingly, I would remand this case to the Union Chancery Court for the purpose of taking testimony relative to the character of Reverend and Mrs. Jones, their facilities for taking care of the child, etc., as a matter of determining the propriety of placing the custody of Dean with them.
I, therefore, dissent to the reversal.