
    No. 325
    ELWOOD v. ELWOOD
    Ohio Appeals, 8th Dist., Cuyahoga Co.
    No. 5816.
    Decided Dec. 15, 1924.
    601. HABEAS CORPUS—Will not lie where court in granting writ takes into consideration the decree of a foreign court and decides the case upon the question of comity rather than upon the circumstances, and without looking to the good of the child.
    Attorneys—R. J. Selzers for Edward Elwood; E. J. Hopple for Ethel Elwood; both of Cleveland.
   SULLIVAN, J.

Edward and Ethel Elwood were divorced in the State of Illinois and under the -decree, Ethel was given custody of their two children. In contravention of the decree of the Illinois court she agreed to let the husband, then living, in Illinois, have custody of the children for a year. Subsequently, the father without notice to the mother, moved to Cuyahoga County brought the children with him, and having remarried was living in Lakewood. Later on the mother appeared and secured possession of one child and initiated habeas corpus proceedings to get custody of the other, depending upon the decree of the foreign court as a basis for her action and for the right of recovery and the possession of the child. The common pleas granted the writ. Error was prosecuted from the Common Pleas and the Court of Appeals held:

1. It is a well settled proposition of law that habeas corpus proceedings will lie to secure possession of a child of tender years, and in hearing on the application for such writ, evidence is eomptent to show a change in circumstances surrounding the parents as would warrant the court in decreeing contrary to the original order with respect to the custody of a child of tender years; without regard to other questions involved on the theory that the custody of a child of tender years is always the paramount question before the court having jurisdiction over its person.

2. To decide the case upon the question of comity as did the lower court, without regard to other questions involved, is clearly error, for the reason that the good of the child is the crowning question before the court. Judgment of lower court reversed and remanded.  