Opinion
Decided February 14, 1936.
Appeal from Laurel Circuit Court.
C.R. LUKER for appellant.
M.A. GRAY for appellees.
Reversing.
In this contest between Tom Matlock, the father of Emma Jean Matlock, a ten year old girl, and Dan Elam and Emma Elam, her maternal grandparents, for custody of this child, the grandparents were successful, and the father has appealed.
The child's mother is dead, and by section 2016, Ky. Stats., Tom Matlock, as the surviving parent of Emma Jean Matlock, is entitled to have the custody, nurture, and education of her, if suited to that trust, and there being no evidence that he is not so suited, and the trial court did not expressly find he was not suited to the trust, it follows the court erred in not awarding the custody, nurture, and education of the child to him.
The father and mother of this child separated before the child's birth, and this child has lived continuously with her maternal grandparents all her life and shortly before she died, in October, 1926, the child's mother undertook to give her to her grandparents, who are devoted to the child and with whom she appears to have a good home, but the statute gives this child to the father, where he is suited to the trust, and the proof does not show this father not to be so. A case on all fours with this one is Mason v. Williams, 165 Ky. 331, 176 S.W. 1171. Chapter 18, Ky. Stats. sec. 325 et seq., makes abundant provision for the protection of this child, should the father fail to treat her properly or prove to be unsuited to the trust.
Judgment reversed for judgment as indicated.