Epitomized Opinion

Published Only in Ohio Law Abstract

This was an action for modifying a divorce decree in reference to the custody of a child. Jesse Underwood obtained a divorce from his wife in the Common Pleas Court of Summit county about eight or nine years previous to this action. Underwood was given the custody of their only child, a boy of about three years of age, who is now about 12 years of age.. On the hearing the child stated to the .court that he preferred to live with his mother. The trial court refused to modify the order, holding that 8033 GC. “giving to the boy the right to decide” was not controlling upon tne *566court. Error was prosecuted to the Court of Appeals. In reversing the judgment of the lower court, the Court of Appeals held:

1. Father and mother stand on equal footing in the eyes of the laiv in regard to the care, custody and control of their children.

2. 8083' GC. is a valid enactment of the. Legislature .and is not unconstitutional.

3. UndeR 8033 GC. a child ten years of age or over has ,a right to choose with which parent he prefers to live unless the court should find that the parfent so selected by reason of moral depravity, habitual drunkenness, or incapacity is unfitted to have such custody, which does not appear to be so in the instant case.