HOOD, Chief Judge.
This action was brought for the custody of a four-year-old girl. The plaintiffs (now appellants) are a married couple with whom the child has resided for over three years. The defendant (now appellee) is the natural mother of the child. From the evidence the trial court found that the mother "is a fit and proper person to have custody of her minor child, and that it is in the best interests of the child that custody be awarded to her." Appellants challenge this finding.
The established rule in this jurisdiction is that one who would withhold a child from its natural parent has the burden of proving that the natural parent is unfit to have custody and that the child's welfare compels awarding custody to the nonparent. The welfare of the child is "inextricably bound up" with the rights of the parent.
This argument is not without force but it is primarily addressed to a question of fact. The same argument was made to the trial court, but that court, after hearing the evidence and observing the parties, found as a fact that appellee was a fit and proper person to have custody of the child. We cannot substitute our judgment on a factual situation for that of the trial court; and we are not willing to rule, as a matter of law, in a situation where reasonable men may rightfully differ, that the trial court was in error.
MYERS, Associate Judge, dissents.