
    No. 20
    JENKINS v. COULSON
    Ohio Appeals, 8th Dist., Cuyahoga County
    Nos. 4417, 4472, 4739.
    Decided No 5, 1923
    413. DIVORCE AND ALIMONY — Custody of children over ten years, cannot be ordered by court on its own motion.
   VICKERY, P. J.

Epitomized Opinion

Jenkins had obtained a divorce from his wife, Mrs. Coulson, who had married again and went to New York. Jenkins was awarded custody of the three children. Mrs. Coulson later filed a motion to obtain leave for the children to visit her in New York. On the hearing Jenkins was ordered to deliver the children to Mrs. Coulson, or somebody for her to be taken to New York.

Jenkins refused to obey this order and was sent to jail for contempt. A subsequent order was made on Jenkins to produce the children in court on December 27th to be delivered to a person who would take them to New York. Neither Jenkins nor the children appeared in court on the day ordered. Thereupon the court of its own motion made an order changing the custody of the children permanently from the father to the mother on the ground that the father was unfit and ordered the children sent to New York. From this order Jenkins prosecuted error to the Court of Appeals. Held:

By 8083 GC., when a change in the custody of a child over ten years of age is sought, he must be allowed to choose which parent he will live with, and if the character of the parent chosen is not unfit the custody must he awarded in accordance with the child’s preference. These children were all more than ten years of age. Two of them had expressed a preference of living with the father. Before Jenkins was thus found hy the court to be an unfit person he should have been notified and allowed a hearing. The order was not warranted by law. Judgment reversed.

Attorneys — Baker, Hostetler & Sidlo, and Holding Masten, Duncan & Leckie, Cleveland, for Jenkins; Dustin, McKeehan, Merrick, Arter & Stewart, all of Cleveland, for Mrs. Coulson.  