196 N.E.2d 588
No. 37876Supreme Court of Ohio.
Decided February 26, 1964.
Habeas corpus — Not available where adequate remedy by appeal — Custody of child awarded — No appeal from order — Divorce case pending.
IN HABEAS CORPUS.
By this proceeding in habeas corpus, instituted originally in this court, petitioner seeks custody of her minor child. She alleges that the child is unlawfully restrained of her liberty by respondents; that the detention is a direct result of an illegal order of the Common Pleas Court of Licking County, Ohio, without it first determining that petitioner is an unfit mother; that the order was ex parte, violating the rules of court; and that there were other irregularities. Attached to the petition is a Nevada divorce decree awarding custody of the child to petitioner.
Respondents Robert C. Byington, Sr., and Anna D. Byington have filed an answer in which they allege that they have custody of the child as a result of a lawful order of the Juvenile Court of Licking County, entered on January 19, 1962, wherein the child, then a resident of such county, was adjudged a neglected and dependent child and was committed to their care and custody. They allege further that no change in the order of commitment has been made by such Juvenile Court, nor has any attempt been made by petitioner or others to change such order; that since the date of the order the child has not been outside the state of Ohio or within the jurisdiction of the Nevada court; and that petitioner has an adequate remedy in the ordinary course of the law in the courts of Licking County.
Respondent Robert C. Byington, Jr., has filed an answer in which he denies that he has custody of the child and alleges that, by virtue of the order of the Juvenile Court above referred to, the other two respondents were given custody of the child; and that such order is at this time in full force and effect.
Both answers pray that the relief asked by petitioner be denied.
No reply has been filed to either answer.
The case has been submitted on the pleadings.
Page 514
Mr. John S. Dunkle, for petitioner.
Mr. Joseph A. Cannon and Mr. Robert A. Burns, for respondents.
Per Curiam.
The answers allege a lawful order of the Juvenile Court of Licking County committing the child to two of the respondents, and that such order remains in full force and effect. The allegations of these answers have not been denied or challenged by reply.
Our statutes confer jurisdiction on the Juvenile Court with respect to custody of a neglected or dependent child. See Section 2151.23, Revised Code.
Relief denied.
TAFT, C.J., ZIMMERMAN, O’NEILL, GRIFFITH, HERBERT and GIBSON, JJ., concur.
MATTHIAS, J., not participating.