Opinion
6 Div. 614.
May 16, 1940. Rehearing Denied June 29, 1940.
Appeal from Circuit Court, Jefferson County; E. M. Creel, Judge.
Taylor Jeffrey and Geo. I. Case, Jr., all of Birmingham, for appellant.
Clark Williams, of Birmingham, for appellee.
This appeal is from a decree of the circuit court of Jefferson County, sitting in equity, awarding the custody and care of William Moss, a minor, two and one-half years old, to his maternal aunt, the mother being dead.
The contest is between the father of the child and its said aunt. The paramount consideration in such cases is the child's welfare. Children's Aid Soc. v. Davis et ux. 211 Ala. 344, 100 So. 325; Payne v. Payne, 218 Ala. 330, 118 So. 575.
The question presented is one of fact in respect to which the evidence, which was given ore tenus, is in conflict. After giving due consideration to the whole evidence, yet taking account of the prima facie right of the father to the child's custody, we are not able to affirm error in the decree.
Affirmed.
THOMAS, FOSTER, and LIVINGSTON, JJ., concur.