Opinion
No. 36873
Decided February 10, 1977.
Habeas corpus — Children — Court of Appeals and Juvenile Court have concurrent jurisdiction, when.
IN HABEAS CORPUS: Court of Appeals for Cuyahoga County.
Mr. Sander Schwartz, for petitioner.
Mr. Glenn E. Billington, for respondent.
This is an original action in habeas corpus seeking to retrieve children alleged to be in the unauthorized custody of one other than the natural mother. Despite the seeming conflict between the absolute language of R. C. 2151.23(A)(3) and Section 3, Article IV of the Ohio Constitution as amended, the jurisdiction of the issues in this case is concurrent. Both the Court of Appeals and Juvenile Court have original jurisdiction in habeas corpus, In re Black (1973), 36 Ohio St.2d 124, 127.
Upon examination of the pleadings, we find the admission there that the petitioner is the natural mother of the children. It does not appear that the matter of custody has been determined by a court having jurisdiction to determine the best interests of the children — an issue not justiciable in habeas corpus, In re McTaggart (1965), 2 Ohio App.2d 214, 223-224. Because the single issue on habeas corpus is the legality of the custody, Shirley Haws is entitled to custody of the children in issue unless it be determined in a juvenile proceeding that the best interests of the children dictate otherwise. This order determines the present right of the petitioner to the children, but physical possession is to be withheld unless and until Juvenile Court has determined where permanent custody shall lodge.
There is some reason to believe from the representation of counsel and documents filed in the case that the petitioner in habeas corpus is not in the jurisdiction.
Writ discharged; other relief as indicated in this opinion.
DAY, C. J., CORRIGAN and PARRINO, JJ., concur.