The custody was given to paternal grand parents in comfortable circumstances and taken from the mother who had been desert ed and was earning a scant living; Brown v. Brown, 2 Ala. App. 461, 56 South. 589. The English rule favoring the father has given place to the consideration of what is best for the child; Turner v. Turner, 93 Miss. 167, 46 South. 413. Between a parent and an outsider, the just claims of the parent and the child's duty to the parent must be considered, if the parent can give proper care and is not unsuitable ; Moore v. Chris tian, 56 Miss. 408, 31 Am. Rep, 375 ; Staple ton v. Poynter, 111 Ky. 264, 62 S. W. 730, 53 L. R. A. 784, 98 Am. St. Rep. 411; contra, Wood v. Wood, 77 N. J. Eq. 593, 77 Atl. 91; a remarriage does not deprive a mother of her right; Moon v. Children's Home Soc., 112 Va. 737, 72 S. E. 707, 38 L. R. A. (N. S.) 418.
Considerations as to the age and condition of the child weigh with the court. The well being of the child, rather than the supposed right of either parent, controls ; McKim v. McKim, 12 R. I. 462, 34 Am. Rep. 694 ; State v. Baird, 21 N. J. Eq. 384; Irwin v. Irwin, 96 Ky. 318, 28 S. W. 664, 30 S. W. 417. The mother of an illegitimate child has a right to its custody ; 10 Q. B. D. 454.
Agreements of a parent to transfer to an other the custody of the child are in general against public policy and not binding; Her nandez v. Thomas, 50 Fla. 522, 39 South. 641, 2 L. R. A. (N. S.) 203, 111 Am. St. Rep. 137, 7 Ann. Cas. 446; contra, Proctor v. Rhoads, 4 Ky. L. Rep. 453; but such trans fers have been held valid to an aunt; Bent ly v. Terry, 59 Ga. 555 ; 27 Am. Rep. 399 ; to a grandfather (when the parents were living apart) ; Clark v. Bayer, 32 Ohio St. 299 ; 30 Am. Rep. 593 ; to a grandmother ; State v. Barney, 14 R. I. 62 ; to a charitable institu tion (the parents living apart) ; Dumain v. Gwynne, 10 Allen (Mass.) 270; hut when the mother paid a weekly sum out of wages due from the institution, it was not an ab solute surrender ; People v. Paschal, 68 Hun 344, 22 N. Y. Supp. 881. In some states a transfer of the custody by the parent is held voidable for want of mutuality and as a- delegation of power ; People v. Mer cein, 3 Hill (N. Y.) 399, 38 Am. Dec. 644; Foulke v. People, 4 Colo. App. 519, 36 Pac. 640; and a transfer has been held invalid of a child over fourteen and without his con sent ; State v. Smith, 6 Greenl. (Me.) 462, 20 Am. Dec. 324.
In one case it is held that where a trans fer of custody is allowed, it is not revocable without sufficient cause shown ; Janes v. Cleghorn, 54 Ga. 9 ; State v. Barney, 14 R. I. 62 ; or unless it is for the benefit of the child ; People v. Erbert, 17 Abb. Pr. (N. Y.)
395 ; in such case the wish of the child is almost controlling unless it is of tender age, and then it must not be placed in jeopardy by immature judgment; Curtis v. Curtis, 5 Gray (Mass.) 535. When the child was placed in charge of the grandparents in in fancy and educated and supported by them until the age of fourteen, there being no un fitness of• either party, custody was refused to the parents and the child was left with the grandparents; Workman v. Watts, 74 S. C. 546, 54 S. E. 775 ; but an oral agree ment by the father giving the child to its In re Galleher, 2 Cal. App. 364, 84 Pac. 352.
By many courts it seems to be held that, while a parent may relinquish the custody of a child to another, in such case there is no implication of finality and of loss of the right to reclaim; Ex parte Reynolds, 73 S. C. 296, 53 S. E. 490, 114 Am. St. Rep. 86, 6 Ann. Cas. 936; Miller v. Wallace, 76 Ga. 479, 2 Am. St. Rep. 48 ; State v. Steel, 121 La. 215, 46 South. 215, 16 L. R. A. (N. S.) 1004; but there is a very strong presumption that a Parent will not give away the right to a child's custody ; Ex parte Reynolds, 73 S. C. 296, 53 S. E. 490, 114 Am. St. Rep. 86, 6 Ann. Cas. 936; a contract of relinquishment must be established by a preponderance of evidence ; Dunkin v. Seifert, 123 Ia. 64, 98 N. W. 558; the acquiescence of the parent may be considered with other facts tending to establish an express contract; Fletcher v. Hickman, 50 W. Va. 244, 40 S. E. 371, 55 L. R. A. 896, 88 Am. St. Rep. 862.
Some courts have recognized a right of contract as to the custody of the children as existing in the parents after divorce and enforceable against them ; Courtright v. Courtright, 40 Mich. 633; Ackley v. Burch ard, 11 Wash. 128, 39 Pac. 372 ; White v. White, 75 Ia. 218, 39 N. W. 277 (where the same custody was provided by the contract as by the decree); but such contracts are only enforced if deemed by the court con sistent with the welfare of the children ; Lowrey v. Lowrey, 108 Ga. 766, 33 S. E. 421; Slattery v. Slattery, 139 Ia. 419, 116 N. W. 608 ; Connett v. Connett, 81 Neb. 777, 116 N. W. 658 ; Pearce v. Pearce, 30 Mont. 269, 76 Pac. 289; but in other cases such contracts have not been treated as effectual to change the natural right of custody ; Hunt v. Hunt, 4 G. Greene (Iowa) 216 ; Kremelberg v. Kremelberg, 52 Md. 553; Farr v. Emuy, 121 La. 91, 46 South. 112, 15 L. R. A. (N. S.) 744 ; or to control the action of the court with respect to care and custody ; Cook v. Cook, 1 Barb. Ch. (N. Y.) 639; Norval v. Zinsmas ter, 57 Neb. 158, 77 N. W. 373, 73 Am. St. Rep. 500.