This is certiorari to review habeas corpus. I am not in accord with the opinion of Mr. Justice McDONALD. I will state the proceedings involved, in chronological order. January 12, 1923, the superior court of Grand Rapids granted Mildred Plantenga a divorce from John H. Plantenga, and awarded her the custody of Elizabeth Plantenga, the child of the parties, then nearly three years of age. That decree is still in full force and effect. March 15, 1923, the mother petitioned the probate court for Kent county to appoint the child's paternal grandfather *Page 381 guardian, stating the child possessed no estate in that county and had no general guardian. March 15, 1923, the probate court appointed the grandfather guardian of the child's estate, reciting in the order that the child possessed an estate. October 13, 1926, on petition of the grandfather, the probate court appointed him guardian, with custody of the child, and recited in the order, among other things, that "the mother of the said Elizabeth Plantenga has been married and divorced on two different occasions since her divorce from John Plantenga, father of the said Elizabeth Plantenga, and that she is not the proper person to have the custody of said child." Following the probate order the grandfather obtained possession of the child. Thereupon the mother, now Mildred Anderson Bush, sued out a writ of habeas corpus in the superior court of Grand Rapids to obtain possession of her child.
At the hearing on the writ the superior court judge was of the opinion that the order of the probate court, taking the child from the custody awarded her by decree of the superior court, and giving the custody to the grandfather, was a nullity because jurisdiction over the custody of the child was vested, by the divorce suit, in the superior court, and exercised by an outstanding decree on the subject, and restored the custody of the child to the mother. The superior court judge also stated:
"I am not saying that Mildred Plantenga Bush is a fit and proper person to retain the custody of this child, nor am I saying that she is unfit to do so. Whether she is or is not can be decided by a proper proceeding to amend the decree." * * *
The grandfather reviews by certiorari. Review by certiorari, of course, presents only questions of law. The question, briefly stated, is: May the probate court, while a decree of the superior court, awarding custody of a child to the mother in a divorce case, is in full force *Page 382 and effect, with statutory power in that court to alter the same at any time for the welfare of the child, enter an order finding the mother an unsuitable person and give the custody of the child to the grandfather? The grandfather justifies detention of the child as guardian of her person and alleges the mother is unfit to have her custody.
My Brother and I agree that the welfare of the child is the paramount consideration.
In the divorce case the child was a special ward of the court and there was undoubted power, as well as duty, under the statute, to decree custody. In re Austin's Estate, 173 Mich. 47 (Ann. Cas. 1917D, 749). Such custody was given the mother. The court had power at any time to revise or alter the decree concerning the care, custody, maintenance, and welfare of the child (3 Comp. Laws 1915, § 11408).
The petition of the mother to the probate court to have a guardian appointed did not at all interfere with or affect the decree in the superior court, for the petition did not ask, and the probate court did not make, an order thereon relative to the custody, but only of the estate. The fact the child had no estate does not amplify the petition or the order. The petition of the grandfather in the probate court asking for the custody of the child, as guardian, and the order of the probate court so awarding him her custody, was in direct conflict with the decree in the superior court and was a nullity. The superior court had full power, in the divorce case, under its retained jurisdiction over children of tender years, to fully safeguard the welfare of the child. Suppose that, upon application of the father, the superior court, under the power vested by statute, now makes an order altering the former one and awards the custody of the child to the father, will such order, in conflict with the order of the probate court giving the grandfather the custody, prevail? *Page 383 Certainly it will, because jurisdiction over the custody, maintenance, and welfare of this child is vested by law in the superior court, and, with an outstanding decree of that court in full force, the probate court could not entertain jurisdiction over the same subject-matter and order a different custody. When and at what point was such power lost to the superior court and vested in the probate court?
We are not informed by this record, but it is reasonable to assume that the father was required to contribute toward the support of the child. If what was done here may be done legally, the decree for support is nullified and the father may not be reached for non-compliance with the decree. If we sanction the order of the probate court we countenance an unseemly conflict of jurisdictions. The superior court, by decree, having vested the custody in the mother, such custody must stand until changed by the superior court, and may not be changed by any order of the probate court.
The superior court should consider the welfare of the child and determine whether her custody be taken from her mother. The superior court has jurisdiction in the premises in thehabeas corpus proceeding.
The refusal to so act should be reversed and the matter remanded with direction to determine the subject of the welfare of the child in accord with present circumstances and as an issue solely within the jurisdiction of the superior court. Appellant should recover costs. *Page 384