249 N.E.2d 532 | Ohio Ct. App. | 1969
This is an appeal on questions of law from a final order of the Juvenile Court of Huron County, incident to a dependency complaint filed pursuant to Section
The appeal was perfected by Patricia Messner Dowley, mother of these children, as appellant, and on behalf of such children, from the final order of the Juvenile Court in the dependency proceeding made on March 1, 1969, which reads as follows:
"It appearing to the court that the Circuit Court of Jackson County, Michigan, has jurisdiction of the children herein, it is ordered that said children be released to officers of said court for their return to Jackson County, *35 Michigan, and that upon their release to said officers the complaint filed herein be dismissed. Costs taxed to complaining witness."
The dependency complaint was filed by the children's father, Franc Messner. No oral testimony was introduced at the dependency hearing. The pertinent part of the written stipulations of the parties admitted in evidence narrates that the parents had been divorced in 1963 by the Circuit Court of Jackson County, Michigan; that in the divorce decree custody of the children named had been granted, until further order of that court, to Patricia Messner; that in 1965 the same Michigan court modified custody to provide that custody be granted to the paternal grandparents, John and June Messner; that from the time of the divorce actual custody of the children has been in the mother who claimed Ohio as her residence; that the mother contended that she was not served with a notice for the 1965 change-of-custody proceedings in the Michigan court; and that that court had no jurisdiction to modify custody.
The stipulations also state that on February 28, 1969, the mother, Patricia Messner Dowley, filed in the Michigan court, where the divorce and custody was originally granted, a petition to modify a previous order of that court relating to custody and that there had been no finding by the Michigan court that either the father or the mother of these Messner children was unfit.
The final order of the Juvenile Court stated above verbatim, which gives jurisdiction of the Messner children to the Michigan court, presents this legal question: Does an Ohio Juvenile Court have the jurisdiction under the power granted to it under Section
Appellee, the state of Ohio, contends the Juvenile Court does have the power it exercised in this case, releasing jurisdiction over the children to the Michigan authorities, by reason of the catalogue of jurisdictional powers granted to *36
the Juvenile Court in Section
"(A) The Juvenile Court has exclusive original jurisdiction under the Revised Code:
"* * *
"(2) To determine the custody of any child not a ward of another court of this state:
"* * *."
The Juvenile Court has only such jurisdiction as is specifically expressed and conferred under the sections in Chapter 2151, Revised Code. In the Messner case, the jurisdiction of the Juvenile Court was invoked under Section
The necessity and purpose of such hearing and finding is apparent from Section
The Juvenile Court of Huron County, in this case, made an order that it appeared that the Michigan court *37 had jurisdiction of the children. The Juvenile Court then ordered the children to be released to the Michigan authorities. It cannot be logically argued that the court made a determination of custody of the Messner children. What the Juvenile Court of Huron County did in this instance was to apprehend the children under the authority vested in the Juvenile Court for apprehension of dependent children, and on that basis assumed jurisdiction over the children and ordered them returned to the Michigan authorities. There is no provision in Chapter 2151, Revised Code, conferring any authority or jurisdiction for a Juvenile Court in Ohio to apprehend a child and return such child to a foreign jurisdiction without a hearing as to whether or not it would be for the best interests of the child.
Habeas corpus has always been a proper procedure in a court of competent jurisdiction under Chapter 2725, Revised Code, to determine illegal restraint or custody of children who are wards of a foreign jurisdiction, and the law is well settled in Ohio that a writ of habeas corpus will not issue returning children to a foreign jurisdiction unless it is shown that it is in the best interests of the children to do so.
The welfare of the child is a primary question and determining factor, and all other matters must yield accordingly, including the comity existing between states. Paddock v.Ripley,
In the Messner case, the children were with their natural mother in Huron County, Ohio, into whose custody they had been awarded by the Michigan court in its initial custody order. It is contrary to law for the Juvenile Court of Huron County to invoke the jurisdiction of its court in a dependency hearing and, with no regard for the best interests of the children, order them returned to Michigan to their paternal grandparents. *38
The appellee further asserts that the Huron County Juvenile Court could make the foregoing order releasing the Messner children to Michigan authorities without prior determination that these children are dependent, neglected, or delinquent, by reason of the decision of the Ohio Supreme Court in the case ofIn re Torok,
The Torok case is neither applicable nor controlling. InTorok, an illegitimate child was placed with petitioners by her natural mother.
Petitioners were paid by the natural parents for the child's care, but they became so attached to the child that they refused to redeliver the child to the natural mother.
In an effort to secure final custody, petitioners filed a complaint alleging the child was neglected and dependent.
The Juvenile Court held that the child was not neglected or dependent and that the natural mother was entitled to custody. In the Torok case, the Supreme Court (page 590 and paragraph two of syllabus) held that the Juvenile Court could, after firstfinding the child was neither dependent nor neglected, determinecustody. Further, the result reached in Torok, supra, gave custody to a natural parent, the mother, where there was no finding of her unfitness.
In the case at bar the bill of exceptions shows that at a hearing on February 28, 1969, the Juvenile Court ordered excluded any reference to dependency,* but considered a stipulation by counsel concerned with jurisdiction of a foreign court. The journal entry of the court found that the foreign court had jurisdiction and provided that on delivery of the children to the officers of that court the dependency complaint would be dismissed. The Torok case is not authority for such a proceeding and finding. *39
Lastly, the stipulation filed in Juvenile Court in the present Messner case exhibits that the mother, Patricia Messner Dowley, contends that she was never served with process notifying her of the 1965 modification-of-custody proceedings in the Circuit Court of Jackson County, Michigan, and that, consequently, the Michigan court had no jurisdiction to modify custody, which it purportedly proceeded to do by an order in 1965 awarding custody to the paternal grandparents. This raises the question as to what recognition or significance, if any, should be given by any Ohio court to the Michigan custody-modification order.
Since the mother in effect denies receipt of notice of the 1965 Michigan change-of-custody proceedings, then there was no personal jurisdiction over the mother in the ex parte custody proceeding resulting in an order which sought to take custody from her. The United States Supreme Court has decided this question. In a judicial proceeding brought in an Ohio court by a former husband against his former wife to obtain possession of their minor children, pursuant to a Michigan decree awarding custody to a person or persons other than the parents, the Ohio court need not give full faith and credit to the Michigan decree where that decree was obtained by the husband in an ex parte
custody determination, subsequent to the divorce decree, in which the Michigan court had no personal jurisdiction over the nonresident wife. May v. Anderson,
The conclusions reached by us are consistent with the holding in Torok, supra, harmonize with the fundamental legal principles protecting the natural rights of parents, which stem from the relationship of parent and child, and do not depart from the statutory law contained in Chapter 2151, Revised Code, the Juvenile Court Code, prescribing the procedure and jurisdiction of the Juvenile Court in this area of the law. A parent has a right to custody of his child against all other persons unless and until in any court having jurisdiction there is a judicial hearing *40
and finding of incapacity or unfitness of such parent. In reDuffy,
The judgment of the Juvenile Court is reversed, and, entering the final judgment the Juvenile Court should have entered, this court renders final judgment dismissing the complaint at complainant's costs, and further orders that the order of the Juvenile Court releasing the Messner children to officers of the Circuit Court of Jackson County, Michigan, is null and void, and will not be part of such order of dismissal.
Judgment reversed.
STRAUB and POTTER, JJ., concur.
