A mother, separated from her husband, is entitled to the custody of her infant child, in preference to the grandfather, into whose hands the child had been placed by the father soon after its birth.
READE, J.
In giving the custody of the child to the paternal grandfather, his Honor was influenced no doubt by the consideration that he was the most proper person under the circumstances; and we would affirm his action if we were permitted to do so, but the statute is express, that it shall be given either to the father or the mother. Bat. Rev. ch. 54, section 39. There was formerly a statute which gave discretion to commit the custody to other fit person, but that has been repealed.
We declare that there is error in the order giving the custody of the child to the grandfather; and that as the case now stands the mother, the petitioner, is entitled to the custody. The cause will be sent down to the Superior Court of Polk county, that proper orders may be made. The cost will be paid by William Thompson.
There is error. The cause is remanded to Polk Superior Court, and this opinion certified.
PER CURIAM. Order reversed.