and while it was a nervous baby, it was not as nervous as some other babies cared for by her. However, on the record, it may be conceded. the baby, when the Doyles received it, was more nervous than babies of that age usually are and that Mrs.

Infantsperformance of contract to care for child -effect.

Doyle gave it proper attention and properly cared for it. But that was her contract, and because she in such respect performed it gave her no right to keep the baby.

Several witnesses testified that the general reputation of Doyle was bad; that he used "terrible language" that could be heard for blocks, and that he "was dishonest." Two witnesses testified on behalf of Doyle, one that Doyle was "as good a neighbor as I ever had," and the other that his reputation was "as good as the average." Neither the character nor the reputation of the plaintiff was in any particular assailed, nor was it claimed that he was unfit or unsuitable, or in disrepute, or that he was in ill health, or was unable to earn a living for himself and the child.

We thus have a situation where the plaintiff has shown a clear legal right to the custody of the child, and where the defendants have shown no legal right whatever. No one claims to the contrary. No abandonment or forfeiture or laches or legal surrender or unfitness or inability on the part of the plaintiff was either alleged or shown. We thus think the legal right of a fit

-parent's right as against opposing claimant.

and suitable parent to the custody of his child ought not to be denied him as against an opposing claimant, himself without a legal right to its custody. In such case, as several times declared by this court, it may well be presumed that the care and custody of a child, and its interest and welfare, will best be subserved under the control of the parent.

But not only that, the evidence without any substantial dispute

shows, and the court found, that the home provided for the child with Mrs. Frost will give the child every advantage and attention that a child of such years requires, and on the record we are well satisfied that the home influences and surroundings of the child will as well, if not better, be subserved with Mrs. Frost than with the defendants. We have no doubt Mrs. Doyle has taken good care of the child, and that she has become attached to it. But to care for the child for compensation for an indefinite period, and, as found by the court, without any agreement or arrangement for any other or different custody of the child, was what she had contracted to do. When she took the child she, of course, knew that in caring for and fondling it she would become attached to it. That was but natural. But such attachment ought not to rights of outweigh the at- parent and tachment of a nat

-relative

custodian.

ural and suitable parent not guilty of laches or forfeiture. Plaintiff's feelings in such respect are to be considered just as much as those of Mrs. Doyle. They are no less worthy. And, so far as the child is concerned, its welfare will be as well, if not better, subserved with the plaintiff and Mrs. Frost at the place of the plaintiff's residence, and where the child and father may frequently and conveniently enjoy each other's company and society, as with the Doyles where such relation will to a large extent be denied them. Unless the plaintiff is immoral or unfit, such association and companionship of the father and the child is the right of both and ought not to be denied to either. The comforts and benefits of such an association with one of the child's own flesh and blood usually are far more advantageous than an association with strangers.

We think the case is controlled by the cases of Harrison v. Harker, 44 Utah, 541, 142 Pac. 716; Jones v. Moore, 61 Utah, 383, 213 Pac. 191; and Jensen v. Earley, 63 Utah, 604,

228 Pac. 217. This, of the concurring opinion in Harrison v. Harker, supra, was in Jones v. Moore quoted and approved by this court: "Much is said concerning the law of the case, and that the welfare of the child is of primary consideration. The doctrine, when properly understood and applied, may be conceded. The presumption is that parents are fit and suitable to be intrusted with the care and custody of their child, and that its interests and welfare are best subserved under their care and control. Before their legal right to its custody will be denied or invaded by the court, I think it must be made to appear that they in some manner have legally surrendered or forfeited such right or abandoned the child, or are morally unfit to have its custody, or are unable to properly provide for it in their own style and station in life. So when it is said that in determining a disputed custody of a child the primary consideration is its welfare, such statement should be considered in connection with the above propositions. For I do not think any one will seriously contend that, against a stranger, a parent's legal right to the custody of his child will be denied him, where an abandonment or a forfeiture, or laches, or a legal surrender, or unfitness, or inability of the parent is not clearly shown."

as

In Jones v. Moore, this court again said:

"Without now pausing to go into the question of what may be involved within the term 'best interests,' it must suffice to say that that term, as it is understood and applied in cases like the one at bar, has reference more particularly to the moral welfare than to mere comforts, benefits, or advantages that wealth can give. If such were not the case, poor parents could not sustain their right to the custody of a child in which a rich man has taken a special interest and where between himself and the child there exists a strong liking or affection. It is the

comparatively poor and not the rich parents who rear the large families and who give to the world a large majority of the men and women who conduct its affairs. Unless, therefore, a parent has by his acts and conduct in some way forfeited or lost the right to custody of his minor child, the presumptions respecting his right to have such custody are all in his favor. If the cases of this character heretofore decided by this court are critically examined, it will be found that such is the spirit that pervades all of them.

"No hard and fast rule with respect to what may be considered the best interests of a child can, however, be laid down to govern in all cases. Each case must be determined upon its own peculiar facts and circumstances."

In Jensen v. Earley, this was quoted and approved from the case of Hummel v. Parrish, 43 Utah, 382, 134 Pac. 898: "The legal presumption is that it is for the best interests of the child and of society for the child to remain with its natural parents during the period of its minority and be maintained, cared for, and educated by them and under their supervision and direction."

In harmony with such views, we think the judgment should be affirmed with costs to respondent. Such is the order.

Gideon, Ch. J., and Thurman and Cherry, JJ., concur.

Frick, J., concurring:

I was strongly of the impression that the judgment should be reversed and the child awarded to the defendant Esther Doyle, for the reason that the plaintiff, although the father, had no home, nor any prospects of ever having one, and had no friends or relatives to whom he could intrust the care of the infant. In view, however, that my associates are all of the opinion that the child should remain with the father, I yield to their judgment.

Petition for rehearing denied September 22, 1926.

Kentucky. Burke v. Crutcher (1882) 4 Ky. L. Rep. 251 (abstract); Proctor v. Rhoads (1882) 4 Ky. L. Rep. 453 (abstract); Barlow v. Barlow (1906) 28 Ky. L. Rep. 664, 90 S. W. 216, opinion extended on rehearing in (1906) 28 Ky. L. Rep. 1014, 90 S. W. 1055; Day v. Day (1926) 213 Ky. 562, 281 S. W. 493.

Louisiana. State ex rel. Taylor v. Jones (1904) 113 La. 298, 36 So. 973. Minnesota. State ex rel. Larson v. Halverson (1914) 127 Minn. 387, 149 N. W. 664.

New Jersey. Zinsser v. Zinsser (1920) 92 N. J. Eq. 491, 113 Atl. 520; Pope v. Brown (1925) - N. J. Eq. -,

128 Atl. 851.

New York. Mercein v. People (1840) 25 Wend. 64, 35 Am. Dec. 653;

Re Welch (1878) 74 N. Y. 299; Re Maurer (1884) 18 N. Y. Week. Dig. 568; People ex rel. Sternberger v. Sternberger (1896) 12 App. Div. 398, 42 N. Y. Supp. 423, appeal dismissed in (1897) 153 N. Y. 684, 47 N. E. 918; People ex rel. Beaudoin v. Beaudoin (1908) 126 App. Div. 505, 110 N. Y. Supp. 592, order affirmed in (1908) 193 N. Y. 611, 86 N. E. 1129. North Carolina.

Re Hamilton (1921) 182 N. C. 44, 108 S. E. 385. Oregon. Re Ashley (1924) 113 Or. 43, 231 Pac. 153.

England. Re Elderton (1883) L. R. 25 Ch. Div. 220. See also Cooke v. Cooke (1863) 3 Swabey & T. 248, 164 Eng. Reprint, 1269.

As between father and mother.

While instances are perhaps rare where the courts have decreed the custody of a child solely on a consideration of its physical well-being, the health of the child has often been the controlling factor in awarding its custody to a person who otherwise would not be entitled thereto. Thus, the paramount right of the father to the custody of his child has frequently been compelled to yield because the health of the child would be best subserved by leaving it in the custody of the mother.

In Barlow v. Barlow (1906) 28 Ky. L. Rep. 664, 90 S. W. 216, opinion extended on rehearing in (1906) 28 Ky. L. Rep. 1014, 90 S. W. 1055, an action wherein a divorce was granted to the wife, it was held that, although the

general rule is that the father is entitled to the custody of his child, nevertheless, considering the tender age and delicate health of the child in question, the court would look to its best interests, and confide its custody to the mother, whose time and attention could be best devoted to its care and welfare.

In Parrish v. Parrish (Va.) supra, the court, recognizing the primary right of the father, as between divorced parents, to the custody of a child, held nevertheless that the physical condition of the child, its susceptibility to disease, and the danger incident to a change of climate, warranted a decree permitting the child to remain with the mother in Virginia during the winter months, and to pass the balance of the year with the father in Illinois.

In Day v. Day (1926) 213 Ky. 562, 281 S. W. 493, wherein the father sought after nine years to modify a decree of divorce awarding the custody of a child to the mother, the court refused to take the child from her mother, she having been delicate from birth and being still delicate and

nervous.

In Umlauf v. Umlauf (1889) 128 Ill. 378, 21 N. E. 600, it appeared that a judgment of divorce for desertion had been granted to the father, but the custody of the children had been awarded to the mother on the ground that their tender ages and their present physical condition required it. On subsequent application by the father to modify the judgment, the court held that the younger child would be allowed to remain with his mother on account of his delicate health and the fact that he was lame, but that the older boy, although of an exceedingly delicate and nervous temperament, would be awarded to the father. is to be observed that the court attached considerable importance to the personal desires of each of the boys in awarding their custody.

It

In Re Ashley (Or.) supra, it appeared that the parents of a child had been divorced by a foreign decree which provided for the alternate custody of the child. The Oregon court refused to enforce, at the in

stance of the father, a decree which was not shown to be permanent, and as a further consideration held that, as the child was delicate and afflicted with infantile paralysis, its welfare would be best conserved by leaving it with its mother.

In a case wherein it appeared that a wife had abandoned her husband without cause, it was nevertheless held that the child should be awarded to the custody of the mother, where it was of tender years and in feeble health. Re Maurer (1884) 18 N. Y. Week. Dig. 568.

And in a Rhode Island case, a mother who had separated from her husband was held entitled to the custody of her child, where it was of tender years and delicate. McKim v. McKim (1879) 12 R. I. 462, 34 Am. Rep. 694.

In Zinsser v. Zinsser (1920) 92 N. J. Eq. 491, 113 Atl. 520, a controversy as to the custody of a child between parents who had separated, it was held that the custody of the child should be given to the mother, it appearing that the child's health was injuriously affected whenever she visited the father.

The award of the custody of a delicate child to the mother, where the husband and wife had separated, was held proper in Reeves v. Reeves (1881) 75 Ind. 342 wherein the court said: "In such a controversy as this, it seems to us that the mother, unless she is shown to be an unfit person (which was not shown in this case), ought to have the care, custody, and control of a delicate boy of the tender age of five years."

In Mercein v. People (1840) 25 Wend. (N. Y.) 64, 35 Am. Dec. 653, wherein it appeared that the parents of a child had voluntarily separated, the court awarded its custody to the mother rather than to the father, on the ground that it was of tender age and was delicate and sickly, requiring peculiarly a mother's care and attention. See to the same effect, People ex rel. Sternberger v. Sternberger (1896) 12 App. Div. 398, 42 N. Y. Supp. 423, appeal dismissed in (1897) 153 N. Y. 684, 47 N. E. 918.

Where a wife brought an action under the English statute for the custody of her two sons, where she and her husband lived separate, it was held that the mother should have their custody, on the ground of their years and delicate health, and the father should have all proper access to them. Re Elderton (1883) L. R. 25 Ch. Div. (Eng.) 220.

However, in Cooke v. Cooke (1863) 3 Swabey & T. 248, 164 Eng. Reprint, 1269, it appeared that a wife had been granted a divorce, but the custody of an idiot child of twelve years of age had been awarded to the husband. On an application by the wife to obtain the custody of the child in order that she might place him in an asylum, the court held that it would not disturb its decree, but would rely upon an affidavit of a physician from which it appeared that the child was under proper care.

As between father and mother's parents or other relatives.

As in the case of controversy between father and mother, so even as between the father and the parents or other relatives of the mother of a child, the courts have not hesitated to deprive the father of his natural right of custody where the health and wellbeing of the child have seemed to demand such a course.

Where the mother of a child died and it was taken care of by a grandmother, and was two and one-half years old, weak and sickly from her birth, it was held that the custody of such child should be denied the father, where it was for the best interests of the child. State ex rel. Taylor v. Jones (1904) 113 La. 298, 36 So. 973, wherein the court said: "If "the physical welfare of any child is endangered by the inability of the parent to properly care for such child, it shall be the duty of the judge to interpose his authority, for the protection of the child.' Act 1894, No. 79, p. 91, § 1."

In Hussey v. Whiting (1896) 145 Ind. 580, 57 Am. St. Rep. 220, 44 N. E. 639, it appeared that a child, six years of age, was in delicate health at the time of her mother's death, and was then intrusted to the care of her

grandparents, who cared for her until she was thirteen years of age, when her father removed her to the custody of another. The court held that considering the health of the child and the unusual care and attention she required on that account, it would be more conducive to her health and general welfare to leave her with her grandparents.

In State ex rel. Larson v. Halverson (1914) 127 Minn. 387, 149 N. W. 664, it appeared that the mother of a child had been afflicted with tuberculosis, and had died of that ailment a few months after giving birth to her, leav ing the child in imperfect health. The child subsequently contracted an eye disease, which the physicians attributed to the tubercular condition of the mother. The child had been, since her mother's death, in the custody of the maternal grandparents, from whom she had received the most tender and affectionate care. The court held that the natural right of the father to the custody of the child should not prevail over the welfare of the child, saying: "This trouble is likely to recur, and for this reason, coupled with her physical condition, attributable to the same cause, the physicians testified that it would be detrimental to her health and welfare to remove the child from her present surroundings and take her to either St. Paul or Minneapolis. It is their opinion that the child requires an outdoor life, and among congenial surroundings, and that the home life on respondents' farm is best suited to the improvement, now under way, of her general health and condition. The child will receive tender care and attention at the hands of its grandparents and aunt, the respondents. And though a stepmother might extend the same care and attention to her stepchild, and no doubt relator's present wife would endeavor to do so, we are not justified in ignoring the evidence of the physicians above referred to, or in concluding that their judgment of what is best for the child is not sound."

In Re Hamilton (1921) 182 N. C. 44, 108 S. E. 385, wherein it appeared