At common law, the father was considered as always entitled to the custody of his child, on account of his being the head of the family, and the party to whom the child had the right to look for support.1 The modern laws look to the welfare of the child rather than to the rights of the father, and will grant the custody of the child to the mother instead of the father when the best interests of the child require it.

On the death of the father, or upon his being adjudged unfit, the mother, owing the same duties to her minor child as the father would owe if alive, becomes entitled to its custody.2

The court granting a divorce has the power to award the custody of the children to either party to the marriage. The controlling test in such cases is what will be for the best interests of the child. The poverty of a parent will not affect his right to the custody of a child. The mother is entitled to the custody of a bastard child.