
    STATE ex rel. WILLISTON W. GREENWOOD v. MABEL P. GREENWOOD and Another.
    
    October 18. 1901.
    Nos. 12,695 — (15).
    Custody of Children — Father's Right.
    While the statute (G. S. 1894, § 4540) provides that the father, if a suitable person shall have the custody and care of his minor children, yet this right is not an absolute one; for in controversies between parents as to their custody, the welfare of the children will be given controlling consideration by the court.
    Custody Given to Mother.
    In this case, in view of the tender years of the minor children, their custody is awarded to their mother.
    Appeal by relator from an order of the district court for Hennepin county, Brooks, J., vacating a writ of habeas corpus and remanding the minor children of relator to the care of respondent Mabel P. Greenwood, their mother.
    Affirmed.
    
      
      H. V. Mercer, for appellant.
    
      Hall é Eolliner and Frank D. Bedfield, for respondents.
    
      
       Reported in 87 N. W. 489.
    
   PER CURIAM.

This is a controversy betweeen husband and wife, who are living apart, without any present prospect of reconciliation, as to the custody of their minor children, Grace Greenwood, of the age of four years, and Stamvery Greenwood, of the age of three years. On the petition of the father, the children were brought before the district court of the county of Hennepin, which made its order awarding their custody to the mother, and the father appealed from the order to this court, where the matter was heard de novo, pursuant to Laws 1895, c. 327.

Having heard the respective parties by counsel, and duly considered the evidence taken and reported by the referee appointed for that purpose, we are of the opinion that, in view of the tender years of the children, their welfare will be best served by leaving them for the present in the custody of their mother, who is a fit person to have the custody and care of them. While the statute (G. S. 1894, § 4540) provides that the father, if a suitable person, shall have the custody and care of his minor children, yet this is not an absolute right, for in controversies between parents as to their custody, the welfare of the children will be given controlling consideration by the court. State v. Flint, 63 Minn. 187, 65 N. W. 272.

Therefore, it is ordered that the custody and care of the children, Grace Greenwood and Stamvery Greenwood, respectively, be, and are hereby, awarded to their mother, Mabel P. Greenwood, until the further order of the district court of Hennepin county.

Ordered further, that their father, Williston W. Greenwood, be permitted freely to see and visit with his children each and every Wednesday from 7 to 8 o’clock p. m., and on each and every Sunday from 3 to 5 o’clock p. m., but he is hereby forbidden to remove them from the custody of their mother, or interfere therewith.  