Martin v. Fisher , 25 Ohio App. 372 ( 1927 )

This cause comes to us on error from the court of common pleas of Mercer county. Originally it was a proceeding in habeascorpus, brought by Betty Martin, a minor, aged 5 years, through Harley Martin and Hazel Martin, her parents, to obtain her discharge from the custody of one Fred Fisher.

In her petition she says that Fred Fisher is restraining her of her liberty under color and by virtue of a certain purported decree of adoption in the probate court of Mercer county; that her parents did not consent to her adoption by Fred Fisher; and that by reason thereof, and other defects on the face of the record, said decree of adoption is a nullity. She prays that a writ of habeas corpus may issue to Fred Fisher, and that she may be discharged from such illegal restraint.

Fred Fisher in his answer and return admits that Betty Martin is in his custody, but denies that she is unlawfully or wrongfully detained by him.

The trial judge, on submission of the cause, refused the writ, overruled a motion for a new trial, and entered judgment in favor of Fred Fisher.

The reversal of this judgment is the object of this proceeding.

The salient and controlling facts are not in dispute. They are:

That Harley Martin and Hazel Martin are husband and wife and parents of Betty Martin; that by the consideration of the probate court of Mercer county Betty was adopted by Fred Fisher and Lucile Fisher, his wife; that at the time of the adoption Harley Martin and Hazel Martin were divorced; that in the divorce proceedings, the custody of Betty was awarded to Hazel Martin; that Hazel Martin consented to the adoption; that Harley Martin did not consent to the adoption; that Fred Fisher is a proper person, morally and financially, to have the custody of Betty; that she is living with him, and that his home is a proper place for her.

Under the pleadings and the evidence there is but one question for our determination. It is: Was Betty Martin legally adopted by Fred Fisher and Lucile, his wife?

Section 8025 of the General Code, so far as applicable here, provides:

"In any adoption proceedings, written consents must be given to such adoption as follows: * * *

"b. By each of the living parents * * * except as follows: * * *

"d. By the parent awarded custody of child by divorce decree, provided the court which granted such decree approves of such consent * * *."

Insomuch as the adoption of Betty occurred at a time when her parents were divorced, and insomuch as the custody of Betty was awarded to the mother in the divorce proceedings, the consent of Betty's father to the adoption was not necessary.

Plaintiffs in error further claim that the consent of Betty's mother to her adoption was not obtained in a manner required by law, that is to say, it was neither acknowledged nor witnessed. They also claim that the court which awarded the custody of Betty to her mother did not approve of her consent to the adoption; and that, because of the absence of such consent with such approval, the adoption of Betty by Fred Fisher and Lucile, his wife, is a nullity.

Said Section 8025 of the General Code, in part, provides:

"All such consents to such adoptions shall be acknowledged and witnessed."

This section of the General Code is mandatory, and, in order to perfect a legal adoption, it must be strictly followed. But a careful examination of the record fails to reveal that it has not been complied with. It is true that the consent of the mother to the adoption, as shown by the paper writing marked plaintiff's Exhibit A, is neither acknowledged nor witnessed. It is also true that the record is silent as to an approval of the mother's consent to the adoption by the court which granted the divorce decree. But the record does not show that such consent and approval were not, in fact, otherwise, and in accordance with the statute, given and obtained; and, in the absence of such a showing, it must be presumed that they were. By consent of the parties the record of adoption is as set forth in the answer and return, and nowhere therein is it alleged that such lawful consent and approval were not so given and obtained.

A presumption of law, that all the provisions of the law relating thereto were complied with, arises from a decree of adoption, and this presumption subsists until overcome by proof to the contrary. See Lawson Law of Presumptive Evidence (2 Ed.), rule 10, p. 36.

Plaintiffs in error further claim that the court erred in admitting evidence as to their fitness to have the custody of Betty, but even if, under the issues as made, the evidence, as to the fitness of Harley Martin and Hazel Martin to have the custody of Betty, was irrelevant and immaterial, and therefore should have been excluded by the trial judge, nevertheless its reception was not prejudicial to them.

Adopting parents are entitled to the custody of their adopted child to the exclusion of all other persons until some lawful reason for a change of the child's custody is made to appear by competent evidence.

Our conclusion is that the writ should have been refused, and the trial court having so ordered it follows that the judgment of the lower court should be and the same hereby is affirmed.

Judgment affirmed.

CROW and HUGHES, JJ., concur.