Miller v. Miller

Citations

• 38 Fla. 227

Syllabus

<p>1. The <>t’i;;;,inl oiii.;o of the writ of It.abeas corpus was to release from illegal restraint, but when employed to obtain possession, of children of such tender years as to bo incapable of exorcising a liberty of choice, the court released from illegal restraint and also awarded the proper custody.</p> <p>3. In conflicting claims between parents for the custody of their legitimate minor children, the right of the father, at common law, is paramount to that of the mother; but the cardinal rule by which courts are governed in awarding the custody in such cases is the welfare of the child, and not the technical legal right.</p> <p>•3. Guided by the child’s welfare the court may exercise the discretion, in cases of parental conflict, of awarding the custody to the mother when both father and mother are suitable persons to have possession. This will ordinarily be the case when the child is within the age of nurture and most needs the care of a mother.</p> <p>4. The court may, in. case of a child of tender years, and when its welfare demands it, free it from the evil influences resulting from parental misconduct when of such a nature as to injuriously affect the life and character of the child, but without such conduct and unfitness on the part of both parents the custody should not be taken from both. If they are both suitable, the child’s welfare, considering its age, sex and health, may dictate its custody by the mother, but if the latter is unworthy and there is no element of contamination or moral detriment to the child in leaving it with the father, who has the custody, he should not be deprived of his child.</p>