Smith v. Smith

The main opinion reverses the decree granting custody of the children to their mother, the defendant, on the ground that the statute gives the children over 10 the absolute choice of parental custody. This supersedes the finding of the court that their best interest and welfare would be served by being with their mother and confers upon the father the incontestable right to their custody, so that the court is powerless to do other than to award the children to him. Because I am alone in my taking the opposite view, I acknowledge some degree of deference to the opinion of my colleagues.…