Certain significant facts are omitted from the majority opinion, which I think must be emphasized in this dissenting opinion.
The record shows that the child was delivered to petitioner's brother and his wife, Louie E. Gary, respondent herein, when *Page 336 the child was six weeks old. The child was so ill at that time that the respondent had to stop on the way home to see a physician. It was found that the child was suffering from a virulent disease known as thrush, a severe infection of the mouth, and, in this case, the disease had penetrated through the child's entire body. In addition, the pediatrician employed by the respondent here found that the child was suffering from a rupture. The record shows that the respondent employed the pediatrician to care for the child and that she expended considerable sums of money in nursing the child back to a fair degree of health. The record of the pediatrician and bill for services are shown in the bill of exceptions. It is undisputed that, during the time the child has been in respondent's custody, it has received the best of care and attention. It is also undisputed that the respondent is a woman of good character and reputation and of high moral standards.
When the present action was brought in the Court of Common Pleas, the child was two years and ten months old and is now approximately three and one-half years of age. Up to the time the action was brought, the petitioner had failed to see or visit her child and during that time failed to contact or even attempt to contact the child. She did not send the child any correspondence on holidays or on the child's birthday. There is no dispute as to the fact that she attempted to have the child adopted by her brother and his wife. Certainly it must be considered that she knew that a child of tender years, six weeks of age at the time, would necessarily have the care and attention of the respondent, the wife of plaintiff's brother. There is no question either that the abortive attempt by the plaintiff to have the child adopted by her brother and his wife was due entirely to the illness of her brother who has since passed away. This good care and attention were lavished upon the child primarily by the respondent, Louie Gary.
It is the purpose of the petitioner, as shown by the record, to have the child returned to her home in Alabama, which consists of only four rooms, occupied by the plaintiff, four other children of hers, as well as petitioner's mother, father and uncle. In other words, there are eight people, three of whom are adults and five of whom are children, now occupying the *Page 337 four rooms on a farm in Lowndes County, Hayneville, Alabama.
As contrasted to the foregoing situation, the child is presently in the custody of the respondent who resides at 489 East 106th Street, Cleveland, Ohio, in a nine room home in which the child has its own room and the respondent has an income of approximately $300 per month, is a seamstress by trade with appropriate accommodations for her trade in her home, and is, therefore, in a position to stay at home and make a living for and thus give her personal attention to the child. In addition, the child, if it continues to remain in Cleveland, has the benefit of superior educational advantages through our public schools and other advantages which it could not possibly have in Hayneville, Alabama.
Even the brother of the petitioner testified in favor of the respondent to the effect that the child is receiving the best of care and attention in the Cleveland home. On the contrary, the evidence shows that the petitioner, because of the overcrowded conditions above described, and because of inadequate facilities in the home in Alabama, is unable to give the child the attention and care which it should have.
The record also shows that the respondent had taken out an endowment policy for the future education of the child and hospitalization insurance for him, all of which indicates a sincere and loving interest in the welfare of the child.
So far as character is concerned, the record shows that the petitioner is not of good moral character, being the mother of three illegitimate children, including the child which is the subject of the proceeding in this case.
The majority opinion speaks of the respondent as a middleaged widow. While she is a widow, certainly it is not a fact that she is middle aged, unless it is considered that she, being 42 years of age at the time the child was placed in her care, was of such an advanced age as to prevent her from giving the child the care and attention which he deserves and is presently receiving at her hands.
In my opinion, the court committed prejudicial error, even to the extent of an abuse of discretion, in not considering as paramount the welfare of the child and in failing to take into consideration the fact that the mother had abandoned the child. *Page 338
In the instant case, the child was not illegally or unlawfully detained but was, in fact, in the custody and care of the respondent by virtue of petitioner's own act in attempting to have her brother and his wife, respondent herein, adopt the child. By so doing and by failing to take any further interest in the child until such time as her brother passed away, she effectually abandoned the child to all intents and purposes and cannot now be heard to say that the child is presently being illegally or unlawfully detained by the respondent.
In view of the fact that the child now has a good home in a very fine environment, where adequate school facilities are available, the best interests of the child will be served by permitting the child to remain in Cleveland where it will receive the best care and attention in the custody of the respondent. It is unthinkable that the best interests of the child will be served by requiring the child to be taken to a home in Alabama, which is already overcrowded and which lacks proper facilities for the health, welfare, and education of the child.
The fundamental rule in actions in habeas corpus concerning the custody of a child is that the court shall consider as paramount the best interests of the child and the conditions and circumstances which will affect its future welfare. The welfare of the child is the primary question or the determining factor and all other matters must yield accordingly, including the comity existing between states. The child's welfare is paramount to the naked legal right of either parent, and, if the child's welfare so requires, the court will award custody to one other than the parent having the bare legal right to the custody of the child. See 26 Ohio Jurisprudence (2d), 591, Habeas Corpus, Section 33, and cases therein cited, some of which are as follows: Gishwiler v. Dodez, 4 Ohio St. 615; Elwood v. Elwood, 3 Ohio Law Abs., 213; and State, ex rel. Wilson, v. Stiles, 12 O. D. (N. P.), 338, wherein it was held, in a child custody case, that the court will not order a change of custody unless it is satisfied that the child will not suffer thereby.
In In re Tilton, 161 Ohio St. 571, 120 N.E.2d 445, a case directly in point, the Supreme Court states, as appears from the first paragraph of the syllabus, the following:
"1. Where an unwed mother immediately after the birth *Page 339 of a child surrenders possession of the child to blood relatives and thereafter her conduct with respect to said child is such as to amount to abandonment of the child, such mother can not after a period of approximately seven years regain possession of such child through a habeas corpus proceeding instituted against the relatives to whom possession of the child was so relinquished, where in the judgment of the trial court it will serve the child's best welfare for the child to remain in the possession of those relatives."
See, also, In re Justice, 72 Ohio Law Abs., 323, 135 N.E.2d 285, wherein the following is set forth in the tenth headnote:
"10. A court is not bound to deliver a child to a parent upon the claim of mere legal right of a parent, but should in the exercise of a sound discretion and after careful consideration of the facts leave such child where the welfare of the child at the time appears to require."
In the recent case of In re Fore, 168 Ohio St. 363, 367,155 N.E.2d 194, Bell, J., speaking for the court, inter alia, quoted from 8 University of Chicago Law Review, 42:
"`Custody proceedings do not have as their purpose creation or recognition of an aggregate of legal relations, but rather a judicial determination of conflicting claims to the physical control and care of the child. These claims would normally be incidents of the parent-child relationship, and under ordinary circumstances there would be no occasion at all for their assertion in court. It is when the circumstances become abnormal, as where the parents are separated, or there is a divorce, or the parents are allegedly unfit, or are dead, that a situation for judicial cognizance arises. If the case were merely one for determining the merits of the conflicting claims as between the immediate parties, there would be no particular reason for departing from usual concept of jurisdiction in personam; but the very abnormality of the situation brings intoplay the further idea that in making his decision, the trialjudge should be guided not so much by legalistic formulae as byconsiderations which have a bearing upon the ultimate interestsof the child. * * *'" (Emphasis added.)
In the same case, the thought expressed by the court is found as follows on page 367: *Page 340
"An award of custody [of a minor] is not simply an adjudication of personal rights of individuals in and to the minor; it is a conclusion of what is best for the welfare of the child."
While the Fore case, supra, involved questions of domicile, nevertheless what is best for the welfare of the child is the principle which was enunciated in that case which should likewise be applied to the instant case. There can be no doubt, upon comparison of the environment of the child here present in the city of Cleveland, as compared to that existing in Alabama, that the paramount interests of the child are best served by remaining in the custody of the respondent.
The citation contained in the majority opinion, 7 Ohio Jurisprudence (2d), 472, Section 43, supports this dissenting opinion if the entire paragraph is considered. In the same volume, Section 43, at page 473, the following appears:
"However, although the mother has the superior legal right to custody, yet, in proceedings to determine custody, her legal right is not absolute, attention being paid to the welfare of the illegitimate child; and its custody will be placed elsewhere when the mother's continued custody would be likely to cause injury to the child, as where her conduct is unchaste or impure, or she illtreats, abandons, or fails to support the child. Also, the right of the mother of an illegitimate child to its custody may be relinquished by contract, forfeited by abandonment [which is the case here] or lost by her being in a condition of totalinability to afford it necessary care and support." (Emphasis added.)
The essential facts in this case being undisputed, a question of law only is presented, by reason of which the judgment should be reversed as being prejudicial and not in the best interests of the minor child and final judgment should be rendered for the respondent, or, in the alternative, the cause should be remanded to the Court of Common Pleas with instructions to deny the writ of habeas corpus. *Page 341