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Nearly always child custody presents a most serious and trying problem. The writer of this
opinion, as a trial judge, found it to be so and he finds it substantially the same as an appellate
judge. The parents, both of them in many instances, are in court because of their own
transgressions. The children stand in a position somewhat similar to that of innocent bystanders.
The parents are mature and wound less deeply than does the child of tender years, who is usually
cut to the quick. The mother and father, divorced, may, and they often do, find a second and a
sometimes happier home. The child will never have a second natural father or second natural
mother, and in numerous instances at least, for so long as the parents live, that child will occupy
a sort of ‘No Man’s Land’ between them, where it will be buffeted by the recriminations and
disturbed by the vicious criticisms which each parent regularly fires as a sort of barrage in the
general direction of the other, hoping thereby to influence the child. To a layman or to anyone
thinking on this question for the first time, it might seem that as a matter of course the children
should be given to that parent ruled to be the injured and innocent party in the divorce case, and
that the rights of the guilty party – including even consideration for child custody – should be
treated as washed away by that parent’s marital misconduct. This reasoning, in effect, would
amount to a consideration of the children as a sort of ‘prize money package’ to be awarded to
that parent who, by comparison, was least at fault. But if we think more deeply and soundly, the
fallacy of such a procedure becomes quickly apparent. Custody of a child is to be given neither
as a reward to one parent, nor yet is it to be withheld as a punishment to the other parent. The
quotations from the opinions which have been incorporated herein develop the true rule and set
forth the proper test, namely, ‘What is best for the child?’ Such is the law and it is the law of
From the court’s opinion in Frank Paxton, Jr. v. Josephine Paxton, 319 S.W. 2d 280