Waltham

This is an application on the part of J. G. Waltham for the custody of his two children—the one a girl about eight years old, the other a boy about five years. Plaintiff and defendant are husband and wife, but now living separate and apart. The children are now living with their mother at a place in El Dorado county known as Wild Goose Flat, where plaintiff and defendant resided together for about eight months previous to their separation. In the month of October last, the plaintiff left and abandoned his wife and children, and has remained absent from them ever since. Previous to the issuing of this writ, defendant had commenced an action for divorce in El Dorado county.

In a general sense, that the father has a paramount right to the custody of his child is undoubtedly true. Why has he this right in preference to the mother ? Is it on account of any absolute vested right ? No. It is because the law, regarding what will be best for the child, supposes the father to be better capable of educating and supporting it, and when grown up, to advance its interests, than the *147 mother. It is a mistake to suppose that the father has an absolute right to the custody of his child. Where…