In Re Borcherding's Custody

The respondents, the maternal grandparents of the boy, have appealed from an order and judgment granting custody of the child to petitioners, the paternal grandparents.

The boy is now nearly twelve years old. His parents became estranged and separated when the child was very small. For a period he dwelt first with his maternal grandparents and then with his paternal grandparents until his father died in September, 1938, when the child was a little past four. Since then the child has spent some time with his paternal grandparents, but has lived principally with his maternal grandparents at the instance of his mother. The mother, who has not remarried, is mostly away in employment, returning intermittently and for varying periods to the home of her parents. The child's maternal grandparents are tenant farmers and the paternal grandparents dwell in the city.

The paternal grandparents are more than 75 years of age and are not well circumstanced; however, with their old age assistance which both receive from the state, and help from their children, they rent and maintain a home which, though small, is wholly comfortable. The maternal grandparents are about 25 years younger, and though tenant farmers, have maintained themselves in substantial comfort, and with the aid of this child's mother have fairly well maintained the child.

The trial court was of the view that at least temporarily the child would be better provided for if placed in the custody of his paternal grandparents so as to be enrolled in the city schools.

Although it was contended in the trial court that the maternal grandparents were unfit persons to have the custody of the child, the trial court did not so conclude and find, but rested his determination on the stated conclusion that the child had better be placed with his paternal grandparents so as to be enrolled in the city schools; however, the trial court stated that the record discloses that the child has not been seriously handicapped by his previous schooling. And the trial court emphasized the fact that his conclusion and determination was rather of a temporary character. At the same time the trial court permitted the child to remain with the maternal grandparents pending this appeal, thus indicating or confirming the thought of the trial court that no serious ill or evil need be anticipated from leaving the child in the company and custody of its maternal grandparents.

We are definitely impressed with the testimony of the boy himself. He was first examined by the trial judge in his chambers and then upon the witness stand. It is impressively demonstrated that he possesses development and maturity well above his age. He has a definite preference to remain with his maternal grandparents.

The paternal grandparents, though splendid citizens, and earnestly desiring the care of their grandson, cannot be expected to survive in full strength and vigor for a great many more years, and if we now permit this boy to be taken from his younger maternal grandparents, it is wholly possible that within a few years he might from natural causes be deprived of care by his paternal grandparents, while having been deprived of care from his maternal grandparents by the courts. The paternal grandmother is now not in robust health. Unfortunately she is now almost an invalid, and the paternal grandfather evidently is not able to be constantly employed.

The conclusion of the trial court that the boy had better be enrolled in the city schools may be sound, but we fully agree with the trial court that the record discloses that this boy has not been seriously handicapped by his previous schooling. He has not been so handicapped and the record does disclose it. We are satisfied that whatever temporary benefit might be expected from enrollment in the city schools as against other schooling available should not be taken as sufficient to outweigh or even balance the considerations which dictate that the boy should be left with his maternal grandparents, who are younger and more vigorous, where this boy, who is far more than a child, desires to remain, and impressed as we are with his stated reasons for that preference.

We observe the trial court undertook to make careful arrangements for the maternal grandparents to visit the child at his home in the city, with similar provision for the mother to see him and to seek his custody herself when she is definitely and permanently located. However, the cross feelings or ill feelings necessarily engendered by this proceeding and trial would hardly admit of much association between this boy and his maternal grandparents so long as he is required, against his will, to remain at the city home of his paternal grandparents.

We do not imply that this young man has any feeling whatever against his paternal grandparents. On the contrary, while preferring to be located with his maternal grandparents, he is nevertheless attached to his paternal grandparents and they are devoted to him. That is as it should be. Our decision should preserve and promote this status with all its wholesome benefit, insofar as we can accomplish that purpose. With this boy definitely located with his maternal grandparents he would doubtless want to continue his visits with his paternal grandparents in the future as he has been accustomed in the past. And in that circumstance doubtless the maternal grandparents would feel no reluctance in permitting and encouraging such visits in the future as they have in the past, knowing as they would that their present custody coincided with the boy's desires; and all appreciative of the fact that in a very few years the boy would have definite legal rights of his own as to the fixing of his custody. Thus we are convinced that a conclusion is dictated which will preserve the status quo, leaving custody with the maternal grandparents, and that such conclusion offers the best promise of placing this boy presently where he would be best satisfied and contented and in the better place to look forward to some care and guidance from both maternal and paternal grandparents. We may safely assume that his present care by his maternal grandparents will be of reasonably satisfactory character, and there is nothing to the contrary in the trial court's finding.

We deem it our duty, upon review of the entire record, including all the evidence and the announced conclusions of the trial court, to render or cause to be rendered the judgment which the better commends itself to this court, and upon full consideration we have determined it to be our duty to award custody to the appellants, the maternal grandparents; this upon our conclusion that the judgment and order of the trial court is clearly against the weight of the evidence.

There is also presented the view that the district court was without jurisdiction, since the cause as commenced was in the nature of habeas corpus. It is suggested that grandparents have no definite authority or right to proceed by habeas corpus, and therefore in an action so commenced the district court has no jurisdiction to determine the conflicting claims of maternal and paternal grandparents as to which should have or retain custody of the grandchild.

We observe the statute, 12 Ohio St. 1941 § 1354[12-1354], which deals generally with the granting of habeas corpus for the protection of infants. In Ferriss Extraordinary Legal Remedies, page 22, § 3, and on pages 26, 28, 58, 95 and 96, the author deals extensively with the origin and subsequent development of the writ of habeas corpus to include such matters as are here presented and involved. Further excellent text statements appear in 39 C.J.S. (Habeas Corpus) page 574, sec. 41, and 27 Amer. Juris., pages 829 and 832, and in 25 Amer. Juris., page 202.

Such general development of the writ of habeas corpus in such cases is demonstrated and applied in Finlay v. Finlay,240 N.Y. 429, 148 N.E. 624, 40 A. L. R. 937; In re Rieman (In re Holzer), 10 N.Y.S. 516; Brown v. Brown, 2 Ala. A. 461, 56 So. 589; Armstrong v. Armstrong, 196 Iowa 949, 192 N.W. 146; Gill v. Walker, 113 S.C. 39, 100 S.E. 894; Brown v. Harden,150 Ga. 99, 102 S.E. 864. See, also, Popham v. Cross,41 Okla. 629, 137 P. 673.

We have not overlooked authorities cited in an effort to sustain a contrary contention such as In re Stewart, 138 Wash. 59,244 P. 116; In re Pool, 2 MacArthur (9 D.C.) 583; In re Allen, 76 S.C. 151, 56 S.E. 786; The Text of Bailey on Habeas Corpus, sec. 148; People v. Mercein, 3 Hill, 399, 38 Amer. Dec. 644; Milligan v. Childrens' Home, 97 Ind. 355.

Insofar as it is necessary to determine that point, we here assume and conclude that the district court had jurisdiction and that we have jurisdiction to consider the matter on its merits. And we have concluded that we should reverse the judgment on the merits.

Therefore, the judgment is reversed, and the cause remanded, with directions to render judgment denying the relief sought by the plaintiffs or petitioners, and continuing custody of the minor in and with his maternal grandparents.

GIBSON, C. J., HURST, V. C. J., and OSBORN and BAYLESS, JJ., concur. RILEY, CORN, and DAVISON, JJ., dissent.