¶1 (dissenting). Children are not like chattels, subject to barter, sale, or irrevocable gift.
¶2 The statute providing habeas corpus shall be applicable to determine the custody of children, does not specifically authorize a grandparent to maintain such proceedings. The writ, by statute, is made available to secure a parent’s right of child custody. 12 O.S. 1941 § 1354.
¶3 It is believed that in addition to statute a grandparent should not prevail in this character of proceedings, at least until the magistrate authorized to issue the writ finds the parent to be an unfit person to possess that with which nature invested him or her. An equivalent of such a finding is that the child is either abandoned or neglected and so, in a sense, a nullius filius known to the common law. Otherwise, every tub will stand on its own bottom, and courts, without a rule to guide them, will have a multiplicity of cases.
¶4 I am authorized to say Mr. Justice WELCH concurs in these views.