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

that an infant fifteen months old was afflicted with spinal trouble, requiring the treatment of a specialist, and that its grandparents, to whom the child had been committed by its mother by will, were willing to provide such treatment, the court held that the father's paramount right to the custody of the child must yield, as the best interest and welfare of the child would be subserved by leaving her in the custody and care of the grandparents.

In Ex parte Davidge (1905) 72 S. C. 16, 51 S. E. 269, wherein it appeared that a child had been in delicate health from his birth, and his grandmother had nurtured him with the most intelligent care, the court denied custody to the father, on the ground that it would greatly imperil the health of the child to deprive him of the grandmother's experienced attention.

In Hutchison v. Harrison (1921) 130 Va. 302, 107 S. E. 742, there was involved a controversy between the parents and the maternal grandparents over the custody of an infant daughter, a child about twelve years old. The child, on account of its ill health, had lived with its grandmother most of the time from her early infancy. Her parents lived in Tennessee, and on each occasion when she was removed there her health suffered. The court held that, considering the child's nervous temperament, her extreme sensitiveness, the fluctuations in her health attendant upon her trips to Tennessee, coupled with the fact that her desire was to remain with her grandparents, the father's primary right to the custody of the child must yield, and the child should be allowed to remain with the grandparents, subject to her own election to return to the parents.

Where a female child, eight years of age, was of frail and unhealthy constitution, and had been principally raised by her grandmother, who was eminently fit and able to raise her in a proper manner, it was held that her custody should be denied the father, who had no wife or home and no means to educate her. Gardenhire v. Hinds (1858) 1 Head (Tenn.) 402.

In Burke v. Crutcher (1882) 4 Ky. L. Rep. 251 (abstract), the court held that the legal right of a father to the custody of his child must give way, under the circumstance of the case, to the interest of the child, it appearing that the child had always been delicate and had become greatly attached to her grandparents, who were of high social standing and financially able to rear and educate her. See to the same effect, Proctor v. Rhoads (1882) 4 Ky. L. Rep. 453 (abstract).

In Ex parte Murphy (1883) 75 Ala. 409, wherein a father by writ of habeas corpus sought to obtain the custody of his child, it appeared that the child was a very delicate one, requiring and receiving from its grandmother the tenderest nursing, and that at the time of the trial it was too sick to be brought before the court. It was held that the relief prayed for should be refused, but that, should the child's health become established, the application might be renewed.

Where a girl, five and one-half years old, of such delicate constitution that unusual care was requisite for the preservation of her health, had been given by her mother to the mother's sister and brother-in-law, who had given her kind and careful nurture for about four years, and it was at least questionable whether the father would be able to give the child proper care, it was held that the evidence did not warrant the court in giving the custody to the father. Kirkbride v. Harvey (1903) 139 Ala. 231, 35 So. 848.

In McKercher v. Green (1899) 13 Colo. App. 270, 58 Pac. 406, writ of certiorari dismissed in (1900) 27 Colo. 405, 51 L.R.A. 105, 61 Pac. 592, a controversy between the father and his deceased wife's immediate family as to the right to the custody of an infant child, six years of age, of a highly nervous temperament and inclined to be delicate physically, the court held that the determination of the case depended entirely on what would be for the best interests of the child, and that in the instant case, considering the age, disposition, and

health of the child, it would be for the welfare and best interest of the child that it should, for a few years at least remain in the care of the family of its deceased mother.

In Risting v. Sparboe (1917) 179 Iowa, 1133, 162 N. W. 592, wherein it appeared that a female child was of delicate health and nervous temperament, and had been reared by her aunt,

physician, the court refused, at the instance of the father, to transfer the custody of the child to another relative, where such change would be detrimental to her health, especially since the father was unable to care for her personally in a home of his

own.

However, in Winter V. Winter (1918) 184 Iowa, 85, 166 N. W. 274, it appeared that the mother died in childbirth, leaving a child which was prematurely born. She was reared for three years with the tenderest devotion by the plaintiff, a sister of the deceased mother. The father by stealth obtained the child, and the plaintiff sought to recover its custody. The court held that the fact that the plaintiff was a professional nurse, making it impossible for her to devote her time during the day to the welfare of such a delicate child, was a circumstance of considerable importance, and, apparently with some reluctance, awarded the child to its father.

So, in a case wherein it appeared that the mother of a child had died after an illness of a tubercular nature, leaving a will directing that her parents should have custody of the child, the court, remarking that there was not a great difference between the physical surroundings in the two homes, awarded the child to the father, saying: "Perhaps, in view of the tubercular disease of the mother, safety lies rather away from the home of the grandparents." Pope v. Brown (1925) N. J. Eq. -, 128 Atl. 851. In Re Mitchell (1836) R. M. Charlt. (Ga.) 489, it appeared that a child's mother had died when it was born, and the mother's parents had taken the child, with the father's consent. The father demanded the custody of the child when it was three months

old, asserting that the grandparents' treatment of it was injudicious, calculated to make its constitution too delicate, and to predispose it to a disease hereditary in the family of its deceased mother. The court awarded the custody of the child to the father, saying: "He is an intelligent physician, who disagrees to the mode in which his child is treated in a medical point of view, and expresses under oath his apprehension that both the body and mind of his offspring will suffer under such treatment. He is anxious to obtain its custody, that he may guard it against the consequences of this treatment, and that he may shield it from a disease which he alleges to be hereditary in the maternal line, and which the manner in which it is reared is fast driving it into." As between mother and father's relatives.

In one case at least, the custody of a child has been denied to its mother as against the father's relatives, on account of considerations pertaining to its health and general welfare. This is Harrist v. Harrist (1907) 151 Ala. 656, 43 So. 962, in which it appeared that a child had been living for the greater part of twelve years with certain uncles and aunts, presumably paternal relatives, who had been requested by the father on his deathbed to raise the child, and who had given her affectionate parental care. She was suffering from a serious malady, and a physician had advised that she was unable to work. Nevertheless, on the occasion of a visit to her mother, the latter had subjected her to drudgery, to the detriment of her health. The court refused custody to the mother.

However, in People ex rel. Beaudoin v. Beaudoin (1908) 126 App. Div. 505, 110 N. Y. Supp. 592, affirmed in (1908) 193 N. Y. 611, 86 N. E. 1129, the custody of a child eight years of age, who had been living for four years with his paternal grandmother, who claimed that the father, before his death, had given the child to her, was awarded to the mother, the court saying: "It is claimed that he is a nervvous and delicate child; and this fact