
    Martha Ailes LeMOINE, Petitioner, v. Robert Lewis AILES and Martha Eloise Ailes, Respondents.
    No. Q-152.
    District Court of Appeal of Florida, First District.
    Feb. 8, 1972.
    Rehearing Denied April 6, 1972.
    
      Daniel I. McCranie, of S. Perry Penland Law Offices, Jacksonville, for petitioner.
    William E. Williams, of Mahoney, Had-low, Chambers & Adams, Jacksonville, for respondents.
   PER CURIAM.

This is an original action in habeas corpus whereby petitioner, Martha Ailes Le-Moine, charges that the custody and possession of her minor son, Robert Darrell LeMoine, is being illegally and wrongfully withheld from her by her parents, the respondents herein. Based upon the petition filed by her in this cause, a rule nisi was issued and served on the respondents directing them to show by what lawful authority they detained and withheld custody of the minor child from the petitioner. Based upon respondents’ return to the rule nisi, the Honorable Sam S. Smith, Circuit Judge of the Third Judicial Circuit of Florida, was appointed a Commissioner of this Court to hold a hearing for the purpose of taking testimony and receiving evidence on the issues made by the petition and return of respondents, and thereafter to file in this cause his report and recommendations in the premises.

An extended hearing was held by the Commissioner pursuant to this Court’s directions, and a transcript of the testimony adduced by the respective parties has been filed in the cause. By his report the Commissioner found that petitioner was a fit and proper person to continue enjoying the possession, care, and custody of her child as awarded to her by a final judgment of divorce rendered by the Circuit Court of Duval County on May 24, 1966, in Case No. 65-6061, which custody order has not been modified, rescinded, or set aside by any subsequent proceedings therein. The Commissioner further found that although the respondents were likewise fit and proper persons to have the care and custody of the minor child, they had nevertheless failed to carry the burden of establishing that petitioner was not an equally fit and proper person to enjoy the award of custody heretofore granted her by a court of competent jurisdiction.

We have carefully reviewed the record of the proceedings and find that the Corm missioner’s report and recommendations are sustained in all material respects. The Court therefore concludes and so holds that petitioner, as the natural mother of the minor child involved herein, is entitled to and shall forthwith be delivered the possession, custody, and control of Robert Darrell LeMoine by the respondents, Robert Lewis Ailes and Martha Eloise Ailes, which custody petitioner shall be entitled to retain until changed or modified by a further order of a court of competent jurisdiction.

SPECTOR, C. J„ and WIGGINTON and CARROLL, DONALD K., JJ., concur.

ON PETITION FOR REHEARING

PER CURIAM.

Petition for Rehearing denied.

WIGGINTON and CARROLL, JJ., concur.

SPECTOR, C. J., dissents.

SPECTOR, Chief Judge

(dissenting):

By their petition for rehearing in this child custody dispute between the maternal grandparents and the natural mother of this child, the grandparents have asked this court to modify our decision of February 8, 1972, wherein we held that the natural mother is entitled to and shall forthwith be delivered the possession, custody and control of the child, so as to defer the change of custody until the end of the present school year. The reason for the requested deferral is to avoid interruption of the child’s education at school. I think this is a reasonable request respecting a matter which was not considered in our original decision and is consistent with the court’s decision in Morris v. Kridel, 186 So.2d 52 (Fla.App.1966). That case also involved a custody dispute between the grandparents and a natural parent of a child. While the court held that there was competent evidence to sustain award of custody to the father, the child’s best interest would be served by deferring the change of custody until the end of the current school year. I believe that the best interest of the child in the case at bar would also be served by permitting him to remain in the custody of his grandparents until the end of the current school term, and I would modify our earlier decision to so provide.

Additionally, the grandparents on rehearing have raised the question of visitation rights in favor of the grandparents, in view of the Commissioner’s finding which was adopted by this court that the grandparents were fit and proper persons to have custody and care of the child, as well as the natural mother. The grandparents obviously relying on Martens v. State ex rel. Grossman, 100 So.2d 440 (Fla.App.1958), contend that both they and the child alike would benefit from the enjoyment and happiness of continuing contacts and association if our decision were modified to permit reasonable visitation rights. I agree wholeheartedly with the grandparents’ views on this question; however, that is a matter which should be addressed to the sound discretion of the circuit court which granted the custody of the child to the natural mother in the first place. It simply is not the function of a habeas corpus proceeding in a child custody case to consider matters of visitation, support money and like topics. The office of the writ of habeas corpus, as counsel must surely be aware, is to determine legality of custody and not to determine which of several qualified persons should be the custodian of a child. That is a matter which should be presented to the circuit court.

And finally, the grandparents have sought modification of our earlier decision on the grounds of newly discovered evidence consisting of a private investigator’s report that the child’s mother has entertained a male visitor throughout the night while an unidentified child occupied the mother’s apartment. Undoubtedly, this is a matter of great concern having a direct bearing on whether it is to the best interest of the child to be placed in the custody of the mother. However, this too is a matter that should be presented to the circuit court which awarded custody of the child to the mother in the first place. It is not a matter touching on the legality of the child’s custody, rather it is a matter bearing directly on the fitness of the natural mother to be the custodian of the child. Obviously, if the mother cannot exercise greater discretion than permitting gentlemen callers to spend the night while her child is present, there is little question but that the child’s best interest would be served by placing the child in the custody of the grandparents who can provide a more wholesome surrounding in which to mature. However, as noted above, this is a matter for the circuit court to consider.

As I understand our earlier decision, it was addressed primarily to the legality of custody. The mother was awarded custody originally and no illegality of that custody order has been demonstrated by the grandparents. The effort by the grandparents to modify the custody order by resort to the juvenile court in Baker County was legally ineffectual. That court has no authority to supersede a legal custody order made by a circuit court. The juvenile court does have authority to place a delinquent or dependent child in the custody of one other than a natural parent or a legal custodian. However, the juvenile judge’s order did not find that the child in this case was either a delinquent or a dependent child. Had that been the case, this court would necessarily have been obligated to rely on the original custody order of the circuit court.

I would grant rehearing and modify our original decision by deferring change of custody until the current school term is over. I concur with the majority’s denial of rehearing as to the other matters raised without prejudice to the right of the grandparents to raise such matters in the circuit court which entered the original custody order.  