Opinion
No. 31322
Decided June 9, 1948.
Parent and child — Custody and control — juvenile Court Jurisdiction limited to child found delinquent, neglected or dependent — Habeas corpus — Common Pleas Court may grant father custody of child, when.
The Juvenile Court has jurisdiction of a child only if such child is found to be delinquent, neglected or dependent. The Court of Common Pleas has jurisdiction to issue a writ of habeas corpus to a father who is a fit person for the custody of a child which is neither delinquent, neglected nor dependent.
APPEAL from the Court of Appeals for Tuscarawas county.
This is a proceeding in habeas corpus under Section 12161, General Code, brought by appellee, Richard Paddock, father of Sally Jean Paddock, age two and one-half years, against appellants, Walter R. Ripley and Margaret Ripley, the maternal grandparents of such child, to recover the custody of the child.
The evidence discloses that about December 20, 1945, appellee's residence burned, resulting in the death of appellee's wife, the mother of Sally Jean. Sally Jean was placed by appellee in the home of appellants.
Appellee, having later married, demanded the custody of Sally Jean. The appellants refused to surrender such custody and this proceeding was instituted.
It was claimed by appellants that some time in February 1946, appellee permanently surrendered such child to them under an oral agreement, which agreement is denied by the appellee.
The Court of Common Pleas found that there was no contract in respect of Sally Jean existing between appellants and appellee and granted the writ of habeas corpus.
In the trial court the only issue presented was whether appellee relinquished his right to custody by a valid contract. The trial court held that no such contract existed and allowed the writ. Upon appeal to the Court of Appeals the court found that there was no contract. In the Court of Appeals the additional question was raised to the effect that the trial court had no jurisdiction of the subject matter of the action. The Court of Appeals found that there was no error manifest upon the face of the record of the Court of Common Pleas and affirmed the judgment of such court. It was further ordered that a special mandate issue out of the Court of Appeals directing the Court of Common Pleas of Tuscarawas county to carry the Court of Appeals' judgment into effect.
The case is here following the allowance of a motion to certify the record.
Mr. Charles T. Barkett, for appellee.
Mr. H.M. Rust, for appellants.
Appellants' claim that the Court of Common Pleas of Tuscarawas county did not have jurisdiction of the subject matter is unfounded.
Section 12161, General Code, provides:
"A person unlawfully restrained of his liberty, or a person entitled to the custody of another, of which custody he is unlawfully deprived, may prosecute a writ of habeas corpus, to inquire into the cause of such imprisonment, restraint, or deprivation."
Section 10507-8, General Code, provides:
"The wife and husband are the joint natural guardians of their minor children and are equally charged with their care, nurture, welfare and education and the care and management of their estates. The wife and husband shall have equal powers, rights and duties, and neither parent has any right paramount to the right of the other concerning the custody of the minor or the control of the services or the earnings of such minor or any other matter affecting the minor; provided that if either parent, to the exclusion of the other, is maintaining and supporting the child, such parent shall have the paramount right to control the services and earnings of the child. Neither parent shall forcibly take a child from the guardianship of the parent legally entitled to its custody. * * *"
At common law, the father of a child was entitled to its custody during minority and this right of custody was paramount against the whole world. 30 Ohio Jurisprudence, 558, Section 12.
In 30 Ohio Jurisprudence, 563, Section 16, it is said:
"Small children frequently come under the care and control of their grandparents, but other things, such as school facilities, being equal, a parent's right of custody is superior to that of a grandparent having a present control."
It is argued by appellants that the enactment of the Juvenile Court Code (Section 1639-1 et seq., General Code) has deprived the Court of Common Pleas of jurisdiction to grant a writ of habeas corpus in respect of any child and that the exclusive original jurisdiction over all children is now placed in the Juvenile Court, under Section 1639-16, General Code. Under the Juvenile Court Code, such courts have jurisdiction only of delinquent, neglected or dependent children. The child here in question has not been shown to be delinquent, neglected or dependent or the ward of any other court.
We need not discuss the question of whether the General Assembly could deprive a parent of the custody of a child and place such child under the jurisdiction of the Juvenile Court where such child is not delinquent, neglected or dependent. It is our opinion that the Juvenile Court has no jurisdiction over a child which is neither delinquent, neglected nor dependent. We agree with the statement in the Court of Appeals in its opinion that:
"There can be no question as to the correctness of the decision of the court below on the merits in awarding this child to the father. The record convinces us that the arrangement whereby the defendants cared for Sally Jean was only temporary in nature and was not such as to deprive the father of his right to the custody of his daughter. There are no elements of abandonment present and no question was raised as to his fitness to have her. The testimony of Mrs. Ripley herself on page 8 of the record shows that there was no contract."
Therefore, the judgment of the Court of Appeals should be and hereby is affirmed.
Judgment affirmed.
WEYGANDT, C.J., MATTHIAS, HART, ZIMMERMAN, SOHNGEN and STEWART, JJ., concur.