
    Cornelia M. Klein v. Martin Klein.
    
      Dvooi'oe — Custody of chilcfo'en.
    
    When a divorce is decreed to the wife for the cruelty of the husband,, the wife is prima fade best entitled to the custody of very young children of the marriage.
    This is also the rule of the statute, Public Acts 1879, p. 154; and therefore in such a case the wife should be given the custody of children three and five years of age, though it be plain that she as well as the husband is blameworthy for the separation.
    Appeal from Superior Court of Detroit.
    Submitted October 21, 1881.
    Decided January 25, 1882.
    Divorce. Complainant appeals.
    Reversed.
    
      Otto Ki/rchner for complainant.
    
      Alfred E. Eawes for defendant.
   Cooley, J.

In this case the wife has obtained a divorce from her husband on the ground of extreme cruelty. The husband acquiesces in this decree, but the wife has appealed from a clause therein which awards to the husband the custody and control of one of the children of the marriage. There are two of these children; a girl five years of age when the decree was pronounced, and a boy two years younger. The boy is awarded to the father.

The evidence in the case does not satisfy us that the fault in the separation is chargeable to one of the parties exclusively, or that the welfare of the children unmistakably requires that they be confided to one of the parties rather than the other. But they are now with the mother, who in the light of the decree must be regarded as being without legal fault, and there should be reasons preponderating in favor of the husband before any change should be made. Besides, the children are of very tender age,- and the statute favors the custody of the mother under such circumstances. Public Acts 1819, p. 151.

The statutory provision is as follows: That in case of the separation of husband and wife having minor children, the mother of said children shall be entitled to the care and custody of all such children under the age of twelve years, and the father of such children shall be entitled to the care and custody of all such children of the age of twelve years or over: Provided, That any probate court or any court of competent jurisdiction may, on petition and hearing thereof, make and enforce such order or orders as it may deem just and proper as to the care and custody of such minor children, excepting in cases where an order or decree may have been made by any court in chancery regarding such children : And provided fv/rther, That nothing in this act shall prevent any court of competent jurisdiction from making and enforcing any such order or orders as it may deem just and proper as to the care and custody of such minor children in the same manner and with like effect as it could if this act had not been passed.” We are disposed, therefore, to reverse the decree so far as it awards the custody of the youngest child to the father, leaving the chancery court to deal with the case hereafter on any change of circumstances.

Graves, C. J. and Marston, J. concurred.

Campbell, J.

The husband not having appealed, I concur in the result.  