Epitomized Opinion

Plaintiff sued out a writ of habeas corpus for the possession of Thistle Cox, a minor child about fou: years old. Plaintiff had been married for some years to one James Barrett and had two children by him Petitioner was separated from her husband aboul five months prior to the birth of Thistle Cox, or Aug. 8, 1918. Since that time she, with her twc children, resided with her parents until April 1 1919, when she brought Thistle Barrett to defendants for them to care for her. The petitioner ther went to New York to study art and remained there until June, 1922. On October 13, 1921, Mrs. Barrett was granted an absolute divorce in West Virginia and awarded exclusive custody and control of hei two infant children. When she came back from New York, she demanded that the defendants turn over to her her child Thistle, but they refused tc do so. The plaintiff had remarried at this time, and upon refusal of defendants to turn over the child this petition was filed by her. At this hearing evidence was introduced by defendants tending tc show that the petitioner had had improver relations with her _ second husband prior to their marriage. It also disclosed considerable improper conduct or the part of defendants. As the Common Pleas Couri of Summit county awarded the custody of the chile to the defendants, the petitioner prosecuted error In reversing the findings of the lower court, the Court of Appeals held:

1.When the residence of a divorcee with the presence of the child has been fixed in another state, and the facts and conditions concerning the custody of the child have been materially changed the court in that other state will take jurisdiction and determine the right and custody of the child.

2.The right of the custody of a minor child is to be determined upon a consideration of its besi welfare, and that its welfare is largerly, if noi entirely, within the sound discretion of the court is based upon the facts and circumstances surrounding each case.

3.All exceptions to depositions must be in writing and specify the grounds of - objection, and be filec with the papers in the case, and no exception other than for incompetency or irrelevancy shall be regarded unless made and filed before the commenee-mnt of the trial; and it is prejudicial error for a court to exclude depositions based upon oral objections made thereto at the time of trial.