Opinion
Docket No. 88, Calendar No. 34,059.
Submitted April 10, 1929.
Decided June 3, 1929.
Certiorari to Wayne; Jayne (Ira W.), J. Submitted April 10, 1929. (Docket No. 88, Calendar No. 34,059.) Decided June 3, 1929.
Habeas corpus proceedings by Alberta Sarazin against May Holton to obtain possession of plaintiff's infant daughter. Judgment for defendant. Plaintiff brings certiorari. Reversed, and judgment directed entered for plaintiff.
Frank A. O'Boyle, for plaintiff.
Charles R. Robertson, for defendant.
Plaintiff's daughter, since her birth, nearly three years, has been with defendant. Habeas corpus was instituted to recover the child. The matter was referred by the court to Hon. Edward Pokorny, friend of the court, whose report is "that the present custodian, Mrs. Mae Holton, and the mother of the child, Mrs. Alberta Sarazin, are suitable and satisfactory persons to assume the responsibility of the upbringing of this child." He also found that the home of each party was satisfactory. In these circumstances, he recommended that the child be awarded to plaintiff, the mother. The trial court dismissed the writ. Plaintiff brings certiorari. The evidence of practically equal fitness of the parties to have custody of the child, and of the character of their respective homes, establishes as a matter of law the correctness of the finding and report of Mr. Pokorny. The statute, 3 Comp. Laws 1915, § 13955, as amended by Act No. 344, Pub. Acts 1921, here controls, quoting:
"The father or mother of the minor, and if one of them be deceased, then the survivor thereof, being respectively competent to transact their own business, and otherwise suitable shall be entitled to the custody of the person of the minor and to the care of his education."
And see Partch v. Baird, 227 Mich. 660, and 230 Mich. 615; Greene v. Walker, 227 Mich. 672.
Reversed. Remanded, with direction to enter judgment for plaintiff.
NORTH, C.J., and FEAD, FELLOWS, WIEST, McDONALD, POTTER, and SHARPE, JJ., concurred.