Epitomized Opinion

In 1922 the Summit Common Pleas granted a divorce to Harry Coleman from Minnie Cole■man (now Maroney) for gross neglect of duty and ordered the custody of the children into the hands of their father. Thereafter an application was filed in Probate Court, by the Dabneys, by which it was sought to adopt one of the children of Coleman, and to which the father consented. Laws in Ohio provide that where the custody of children has been given to one parent, his consent to an adoption approved by the court granting the divorce, shall be sufficient to warrant the Probate Court in granting the adoption.

In all events, Coleman filed a motion in the Common Pleas, moving it to modify the decree theretofore entered by permitting the adoption of the oldest child, Alberta, by her aunt and uncle, Ethel and Elmer Dabney. Copy of motion was sent to Coleman’s former wife and the motion was granted.

Minnie (Maroney) filed a petition in error, and the Court of Appeals held:

1. The Common Pleas cannot order adoption, it being within the province of the Probate Court.

2. Approval of Common Pleas is necessary *154to consent of father to adoption, before Probate Court can decree adoption. 8025 GC.

3. The mother in the divorce decree was permitted to see her childen and take them to her home. This is construed as partial custody and therefore her consent would have been necessary.

Order of Common Pleas is reversed.