Opinion
Opinion Filed February 3, 1925.
A Writ of Error to the Circuit Court for Pinellas County; M. A. McMullen, Judge.
Affirmed in part; reversed in part.
Dewey A. Dye, for Plaintiff in Error;
Sparkman Knight, for Defendants in Error.
This writ of error was allowed and taken to an order awarding the custody of a minor child, the order being as follows:
"The above entitled cause coming on for final hearing upon pleadings in said cause and proofs as taken in open court, and the court being fully advised in the premises does ORDER, ADJUDGE AND DECREE that the care, custody and control of Billy Rice Parker be awarded to the complainant, Roena Irene Lamb until said child shall arrive at the age of 21 years, or until the further order of this court.
"It is further Ordered, Adjudged and Decreed that the defendant, Anna Lula Gates, shall have the right to have said Billy Rice Parker visit and remain with her for week end trips beginning Friday afternoon and ending on Monday morning on the second week end, which shall be the first Friday after the second Thursday of each of the following months, for each and every year, that is January, March, May, July, September and November, provided however that during the school term such week end visits shall be from Saturday morning until Sunday afternoon, that also said child shall visit with the defendant, Anna Lula Gates, for the last fifteen days of the month of June of each year hereafter during the continuance of this order.
"It is further Ordered, Adjudged and Decreed that for the present month of July that the week end visit of said child to the defendant, Anna Lula Gates, shall commence on the afternoon of the 18th and shall terminate on the morning of the 21st.
"It is further Ordered, Adjudged and Decreed that it shall be the duty of the respective parties, to-wit, Roena Irene Lamb and Anna Lula Gates to see that said child is delivered to the party entitled to the custody or the visits as herein provided whenever said child is in their possession, as per the terms of this order. This may be done by the respective parties delivering said child either in person or by placing said child in the care of some transportation company with his transportation paid.
"It is further ordered that this court does expressly reserve jurisdiction over said child for the purpose of making such other or further orders as the best interest of said child shall demand."
It appears that the minor child, about nine years of age, is the child of the plaintiff in error Roena Irene Lamb; that Anna Lula Gates had the custody of the child during the greater part of its life, but the mother had not relinquished her right to the custody of the child; that the mother is now married and she and her husband can suitably provide for the child's custody and general welfare.
In awarding the custody to the mother, the chancellor found on supporting evidence that the mother is a proper person to care for the child, therefore the order in so far as it awards the custody of the boy to his mother and retains jurisdiction to make further orders is necessary for the child's welfare, is affirmed; but the remainder of the order is reversed as it is not warranted by the evidence and the law applicable thereto, and cannot legally be enforced against the wishes of the child's mother. See 29 Cyc. 1590-1.
It is so ordered.
TAYLOR, C. J., AND WHITFIELD, ELLIS, BROWNE AND TERRELL, J. J., concur.