Somewhat reluctantly I concur in the judgment of reversal in this case. Under Section 8032, General Code, the parents shall stand upon an equality as to the care, custody and control of their offspring, so far as it relates to their being either father or mother thereof.
In my view of the language of this section, the Legislature simply intended that the sex of either parent would not give one parent any greater right to the custody than the other. The provisions of Section 11987, General Code, seem in a measure to be in conflict with the provisions of Section 8033, General Code. Section 11987, General Code, is the older of the two and provides that in granting a divorce and dissolution of the marriage, the court shall make such order for the disposition, care and maintenance of the children, if any, as is just. The only limitation upon the court under this section is that the order shall be "just." It is this language that has given rise to the statement in many opinions that the court sits as a court of *Page 570 chancery in awarding the disposition of the children of divorced parents.
In Breisach v. Breisach, 37 Ohio App. 34, 173 N.E. 317, the court says in the opinion:
"There seems to be a wide discretion reposed in the trial court in providing, in divorce cases, for the care and maintenance of children; but the order must be just."
In Schwalenberg v. Schwalenberg, 65 Ohio App. 217,29 N.E.2d 617, in an opinion by Phillips, J., concurred in by Judge Carter and myself, the Court of Appeals of the Seventh Appellate District states:
"It is conceded by both parties that where the custody of a child is in dispute and the parents cannot agree thereon, the welfare of the child is of the paramount consideration."
Both parents were proper in that case.
In Godbey v. Godbey, 70 Ohio App. 450, 44 N.E.2d 810, in an opinion by Matthews, J., the Court of Appeals for Hamilton county says:
"By Section 8032, General Code, the parents are placed upon an exact equality as to the custody of the children. Neither is given by law a superior claim to custody, and the welfare of the child is the sole test by which the issue is determined. 14 Ohio Jurisprudence, 549, Section 144 et seq.
"It is clear, therefore, that unless the mandate of this statute is so compelling as to supersede this long-established rule, the trial court in the exercise of a sound discretion could award the child's custody to either the mother or father, or toneither, dependent entirely upon his determination of what would be for the welfare of the child, under all the circumstances, and the child's preference would be just one such circumstance, but not necessarily the controlling one."
A strict reading of the provisions of Section 8033, General Code, would seem to be in conflict with the provisions *Page 571 of Section 11987, General Code; would seem to limit the power of the court to award the custody of offspring to the parents, since that section provides that "the court shall decide which one ofthem shall have the care, custody and control of such offspring, taking into account that which would be for their best interests, * * *."
In the opinion written by Judge Hornbeck herein, this language is given compelling force since it is not definitely ascertainable from the order made by the Court of Domestic Relations that either parent is unfit to have the custody of the children.
The very fact that the trial court did not give both children to the mother indicates to me that the court did not consider the mother a proper person to have the custody of both children. It is quite conceivable that a mother could furnish an adequate and proper home for one child but be utterly incapacitated from caring and providing for two children, so that the best interest of the children would not be conserved by awarding both of them to her. It is also conceivable that the trial court took into consideration the fact that the marriage relation between the parties had been dissolved and that the father would not at the time be capable of providing proper care for either child, being without a wife in his home.
It must be kept in mind that the father is not making complaint because the trial court awarded the custody of one of these children to his parents. The trial court doubtless gave consideration to the fact that the father would naturally reside with his parents after the dissolution of the marriage relation between the parties, and evidently found the grandparents were the proper persons to have the custody of one child. In strict compliance with the provisions of Section 8033, General Code, it may have been more proper for the trial court to have awarded the custody of the boy to the *Page 572 father but designating that the father's parents would look after its welfare until the future order of the court.
The judgment of reversal in this case will give the lower court opportunity to make a proper order in conformity to what I believe was the intention of that court in the first instance, and for that reason alone I am concurring in the judgment of reversal, as I do not give to the language of Section 8033, General Code, the compelling effect which Judges Hornbeck and Geiger have given.
I note that in Blaisdell v. Blaisdell, 7 Ohio Law Abs., 685, the Sixth District Court of Appeals allowed the children to remain with the maternal grandparents at Hudson, Michigan, the children having been originally awarded to the mother and it appearing that the mother at time of modified order lived withher parents. In that case, as in this, there was no proof that either parent was unfit or improper to have their custody.
I have read with interest the very able article of Judge Weinman of the Common Pleas Court of Jefferson county, Ohio, published in Vol. X, No. 5, Law and Contemporary Problems, School of Law, Duke University, in which the judge very properly, I believe, arrives at the conclusion that the welfare of the child is of the paramount consideration of the court in awarding the custody of children of divorced parents.
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