dissent">HILL, Judge.

I respectfully dissent from the majority opinion in this child custody case.

This is the third time the custody of these five children has been presented to this court, and each time the court has shied away from the real issue and relied upon technicalities to avoid facing up to it. In the meantime, the children have been shifted from pillar to post, including the Jefferson County Children’s Home. They are growing up unsettled and without the stability of supervision. The parents of these children were divorced in June 1963. Appellant, the mother, was granted a divorce at that time on the ground of cruel and inhuman treatment. The divorce judgment found appellee, the father, “unfit” to have their custody and that the divorce was caused by his “failure * * * to properly care for his family.”

It is my opinion the mother has been deprived of her lawful right to her children solely on the fallacious argument that she has married a member of the Negro race. This is evident from the following statement by the trial court:

“The Court is compelled to take notice of the racial unrest prevalent at this time, and of the struggle on the part of the colored race for equality with the white race. Of course, we realize that this ‘equality’ is a relative word and we use the phrase merely to call attention to the fact that in rearing these children in a racially mixed atmosphere will per se indoctrinate them with a psychology of inferiority. We think that subjecting these children to such a hazard would be in negation of their ‘best interests.’ ” (Emphasis added.)

The record contains no evidence of unfitness insofar as the mother is concerned. Neither is there evidence that the present husband of appellant is unfit. There is some indication that he left some marks on some of the children in attempting to correct them, but such conduct does not render him unfit to have their joint custody along with their mother. On the contrary, this circumstance, to me, is evidence of fitness. The adage “spare the rod and spoil the child” may be old and outmoded, but it is, nevertheless, sound.

RCA 1.185 provides for advancing child custody cases. This rule is now in the process of amendment so that such cases will be advanced automatically and have preference over other litigation. The purpose of this rule will be thwarted if other unimportant technical rules of procedure are followed.

I would disregard technical consideration and expeditiously award the custody of the five children to their mother.

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