McGuire

A suit for divorce is pending between petitioner and his wife, Elsa Jeanne McGuire. The petition here is for the writ of habeas corpus and for an alternative writ of mandate, each of which was issued by this court.

AVe have reached the following conclusions: AYe have no doubt as to our power to entertain a petition for habeas corpus, where married parents of a child are separated and one desires to secure the custody of their child in possession of the other. (12 R. C. L., sec. 34; 29 Cor. Jur. 110.) In such a proceeding the question of first importance to be determined by the court is as to which parent should be awarded custod3r, having in mind the welfare of the child. This proposition needs no authority; That a superior court has no jurisdiction to award the possession of the child, under such circumstances, even tem porarily, to either parent without a legal hearing, except under a certain provision of the Civil Code not here involved ; that in the instant proceeding it appears that no legal hearing was held by the superior court as a basis for the order which was made awarding the temporary custody to the mother, and that consequently this proceeding is legal and proper and…