60 Fla. 407 | Fla. | 1910
The defendant in error presented a petition to the judge of the fourth judicial circuit in which it is in effect alleged that the wife of the petitioner
On writ of error it is in effect contended that the court had no jurisdiction on habeas corpus to award the custody of the two boys to the father, because even if the writ could be used , for that purpose at common law, the statutes of the State control the use of the writ to the exclusion of common law principles, and the statute contemplates the use of the writ only for prisoners in the criminal sense, and no judgment is by the statute author ized except a discharge, a remand or an admission to bail.
The statutes provide that “Whenever any person detained" in custody, whether charged with a criminal offense or not, shall, by himself or by some other person in his behalf, apply * * * for a writ of habeas corpus, and shall show by affidavit or evidence probable cause to believe that he is detained in custody without lawful authority, it shall be the duty of the court * * * forthwith to grant the writ, * ’ * * directed to the person in whose custody the applicant is detained, and returnable immediately before such court” * * *.
“The court, justice or judge before whom the prisoner is brought, shall without delay proceed to inquire into the cause of his imprisonment, and shall either discharge him, admit him to bail or remand him to custody, as the law and the evidence shall require.” Secs. 2248 et seq. Gen. Stats.
The writ of habeas corpus is a common law writ of
At common law the father has the paramount right to the custody and control of his legitimate minor children, subject only to lawful regulations for the benefit of the children. During the father’s life the right of the mother as such remains in abeyance. Prima facie at least the father is entitled to the custody of his minor children as against the exclusive possession by the mother and any detention of such children from the father by the mother may be “without lawful authority” within the meaning of the statute. The application of the father for a writ of habeas corpus to inquire into the legality of the detention
The judgment is affirmed.