If a child is found under circumstances of destitution and suffering, abandonment, or exposure or if the child has been begging or if it is found that the child is being reared under immoral, obscene, or indecent influences which are likely to degrade his moral character and devote him to a vicious life and it appears to the appropriate court by competent evidence, including such examination of the child as may be practicable, that by reason of the neglect, habitual drunkenness, lewd or other vicious habits, or other behavior of the parents or guardians of the child, it is necessary for the welfare of the child to protect the child from such conditions, the court may order that the parents or guardians be deprived of custody of the child and that appropriate measures as provided by law be taken for the welfare of the child.
(Orig. Code 1863, § 1746; Code 1868, § 1786; Code 1873, § 1795; Ga. L. 1878-79, p. 162, § 1; Code 1882, §§ 1795, 4612g; Civil Code 1895, §§ 2504, 2505; Civil Code 1910, §§ 3023, 3024; Code 1933, §§ 74-109, 74-110.)
Cross references.- Restriction on jurisdiction of probate court under this Code section, § 15-9-30(a)(6).
Termination of parental rights in proceedings before juvenile courts, § 15-11-81 et seq.
Law reviews.- For article, "Custody Disputes and the Proposed Model Act," see 2 Ga. L. Rev. 162 (1968). For article, "The Child as a Party in Interest in Custody Proceedings," see 10 Ga. St. B.J. 577 (1974). For article criticizing parental rights doctrine and advocating best interests of child doctrine in parent-third party custody disputes, see 27 Emory L.J. 209 (1978). For comment on Bodrey v. Cape, 120 Ga. App. 859, 172 S.E.2d 643 (1969), see 7 Ga. St. B.J. 256 (1970). For comment on "Grandparents' Visitation Rights in Georgia," see 29 Emory L.J. 1083 (1980).
JUDICIAL DECISIONSANALYSIS
General Consideration
Section must be strictly construed.
- Proceeding authorized by statute was a very harsh one, permitting as the statute did the taking of a child from the child's parent at the instance of any citizen, without regard to the individual right of the applicant. A statute thus in derogation of parental rights should be considered strictly, and prescribed allegations must be specifically made and sworn to before that section can be set in operation. Hammond v. Hammond, 90 Ga. 527, 16 S.E. 265 (1892).
When parent may lose right to custody.
- Parent may lose right to custody only if one of the conditions specified in former Code 1933, §§ 74-108 - 74-110 (see now O.C.G.A. § 19-7-1 or O.C.G.A. § 19-7-4) was found to exist, or, in exceptional cases, if the parent was found to be unfit. Morris v. Grant, 196 Ga. 692, 27 S.E.2d 295 (1943); Bowman v. Bowman, 234 Ga. 348, 216 S.E.2d 103 (1975); Childs v. Childs, 237 Ga. 177, 227 S.E.2d 49 (1976), later appeal, 239 Ga. 304, 236 S.E.2d 646 (1977); Mathis v. Nicholson, 244 Ga. 106, 259 S.E.2d 55 (1979); Larson v. Gambrell, 157 Ga. App. 193, 276 S.E.2d 686 (1981).
Mother within definition of former Code 1933, § 74-203 (see now O.C.G.A. § 19-7-25) cannot be denied custody of a child at habeas corpus proceeding against third parties unless it was shown that parental power was lost under provisions of former Code 1933, §§ 74-108 - 74-110 (see now O.C.G.A. § 19-7-1 or O.C.G.A. § 19-7-4), or that the parent was shown to be unfit. Pettiford v. Mott, 230 Ga. 692, 198 S.E.2d 662 (1973).
Parental control may be lost for any of the reasons provided in former Code 1933, § 74-108 (see now O.C.G.A. § 19-7-1), and may also be lost, under former Code 1933, §§ 74-109 and 74-110 (see now O.C.G.A. § 19-7-4) if the parent was guilty of cruel treatment of the child, and, as to a child under 12 years of age, if the child becomes destitute, or was being reared under immoral influences. Byers v. Loftis, 208 Ga. 398, 67 S.E.2d 118 (1951).
Parental right to custody may be lost in habeas proceeding if one of conditions specified in O.C.G.A. § 19-7-1 or O.C.G.A. § 19-7-4 is found to exist, or if parent is found to be unfit. Miele v. Gregory, 248 Ga. 93, 281 S.E.2d 565 (1981).
Forfeiture of parental rights not prerequisite to change of custody award.
- In order to change award of custody, trial court did not necessarily have to find that legal custodian have forfeited parental rights under former Code 1933, §§ 74-108 - 74-110 (see now O.C.G.A. § 19-7-1 or O.C.G.A. § 19-7-4). Dearman v. Rhoden, 235 Ga. 457, 219 S.E.2d 704 (1975).
In order to change an award of custody, the trial court did not necessarily have to find that the legal custodian had forfeited parental rights under former Code 1933, §§ 74-108 - 74-110 (see now O.C.G.A. § 19-7-1 or O.C.G.A. § 19-7-4), but must find either that the original custodian was no longer able or suited to retain custody or that the conditions and circumstances surrounding the child have so changed that the child's welfare would be enhanced by modifying original judgment. Bell v. Bell, 154 Ga. App. 290, 267 S.E.2d 894 (1980).
Clear and strong proof is necessary to show abandonment.
- When parent has a prima facie right to custody of child, burden is upon contestant to prove by clear and strong proof the contestant's contention that the parent has lost such right by abandonment. Hale v. Henderson, 210 Ga. 273, 79 S.E.2d 804 (1954).
In order to find an abandonment, there must be sufficient evidence of an actual desertion, accompanied by an intention to sever entirely, as far as possible to do so, the parental relation, throw off all obligations growing out of the relationship, and forego all parental duties and claims. In re S.H., 181 Ga. App. 438, 352 S.E.2d 621 (1987).
Custody inures to surviving parent upon death of custodial parent.
- When mother of child, to whom custody had been awarded by divorce decree, dies, prima facie right of custody automatically inured to father. In such circumstances, father's right to custody can be lost only by one of the grounds provided under former Code 1933, §§ 74-108 - 74-110 (see now O.C.G.A. § 19-7-1 or O.C.G.A. § 19-7-4), and, unless so lost, discretion reposed in the trial judge under former Code 1933, § 50-121 (see now O.C.G.A. § 9-14-2) did not apply. Baynes v. Cowart, 209 Ga. 376, 72 S.E.2d 716 (1952); Hale v. Henderson, 210 Ga. 273, 79 S.E.2d 804 (1954).
When the child's mother dies, the father, as surviving parent, acquires a prima facie right to custody of the child and, unless the right to custody has been lost as provided by law, the father is entitled to custody of his child. Jackson v. Dunn, 158 Ga. App. 194, 279 S.E.2d 514 (1981).
Child's best interests control in custody dispute.
- When case involves two "fit" parents, the law contemplates that child be awarded to parent in whose custody the child's best interests will be served. Larson v. Gambrell, 157 Ga. App. 193, 276 S.E.2d 686 (1981).
Consideration given to welfare of child in custody proceeding.
- When plaintiff lost parental control by virtue of order under former Code 1933, §§ 74-109 and 74-110 and no longer has a prima facie right to custody and control of her children, the only consideration in a case in which parent sought to regain custody was welfare and happiness of children, the determination of which rested in sound discretion of trial judge, and in exercise of which the award might be made to a third person. Green v. Loggins, 216 Ga. 169, 115 S.E.2d 350 (1960).
Who may petition.
- Under former Code 1895, §§ 2504 and 2505 any citizen, if he knows that young children are being reared under these improper influences, may make a sworn statement of facts, and ordinary (now judge of probate court) was authorized to take children away from their parents or guardians and make such disposition of the children, under the law, as the ordinary may think proper. Haire v. McCardle, 107 Ga. 775, 33 S.E. 683 (1899).
Divorce decree awarding child to one parent was no obstacle to proceeding under statute. Williams v. Crosby, 118 Ga. 296, 45 S.E. 282 (1903).
Evidence admissible to show immoral conditions.
- Evidence that mother's general reputation for chastity in the community where she lived was bad, and that she was generally reputed to be an immoral woman, was admissible as well as evidence of specific acts tending to show that she was an improper person to have care and custody of children. Moore v. Dozier, 128 Ga. 90, 57 S.E. 110 (1907).
Cited in Moore v. Dozier, 128 Ga. 90, 57 S.E. 110 (1907); Bulloch v. Bulloch, 45 Ga. App. 1, 163 S.E. 708 (1932); Chapin v. Cummings, 191 Ga. 408, 12 S.E.2d 312 (1940); Bond v. Norwood, 195 Ga. 383, 24 S.E.2d 289 (1943); Skinner v. Skinner, 204 Ga. 635, 51 S.E.2d 420 (1949); Snell v. Lopez, 91 Ga. App. 552, 86 S.E.2d 363 (1955); Chambers v. Lee, 215 Ga. 629, 112 S.E.2d 614 (1960); Eller v. Matthews, 216 Ga. 315, 116 S.E.2d 235 (1960); Adams v. Kirkland, 218 Ga. 512, 128 S.E.2d 730 (1962); McMillan v. McMillan, 224 Ga. 790, 164 S.E.2d 839 (1968); Shaddrix v. Womack, 231 Ga. 628, 203 S.E.2d 225 (1974); Howell v. Gossett, 234 Ga. 145, 214 S.E.2d 882 (1975); Conroy v. Jones, 238 Ga. 321, 232 S.E.2d 917 (1977); Cox v. Mills, 238 Ga. 374, 233 S.E.2d 353 (1977); Higbee v. Tuck, 242 Ga. 376, 249 S.E.2d 62 (1978); Bryant v. Wigley, 246 Ga. 155, 269 S.E.2d 418 (1980); Lewis v. Lewis, 154 Ga. App. 853, 269 S.E.2d 919 (1980); Wright v. Hanson, 248 Ga. 523, 283 S.E.2d 882 (1981); In re M.M.A., 166 Ga. App. 620, 305 S.E.2d 139 (1983).
Fitness
Determination of unfitness must be based on parent's present condition. Bozeman v. Williams, 248 Ga. 606, 285 S.E.2d 9 (1981).
Evidence of past unfitness, standing alone, is insufficient to terminate the rights of a parent in the parent's natural child; clear and convincing evidence of present unfitness is required. Blackburn v. Blackburn, 249 Ga. 689, 292 S.E.2d 821 (1982).
Finding of unfitness must center on the parent alone; a court is not allowed to terminate a parent's natural right because the court has determined that the child might have better financial, educational, or even moral advantages elsewhere. Blackburn v. Blackburn, 249 Ga. 689, 292 S.E.2d 821 (1982).
Fitness of parent.
- Fitness was not necessarily synonymous with absence of conduct penalized by former Code 1933, §§ 74-108 - 74-110 (see now O.C.G.A. §§ 19-7-1 and19-7-4). Fact that parent had not forfeited or relinquished parental right by any of the modes of those sections did not establish the parent as fit. Perkins v. Courson, 219 Ga. 611, 135 S.E.2d 388 (1964).
Clear and satisfactory proof necessary to establish unfitness.
- Right to custody may be lost on ground of unfitness only if it is shown by clear and satisfactory proof that circumstances of case justify court in acting for best interest and welfare of child. Bowman v. Bowman, 234 Ga. 348, 216 S.E.2d 103 (1975).
Evidence of parent's unfitness must be clear and convincing. Bowman v. Bowman, 234 Ga. 348, 216 S.E.2d 103 (1975); Mathis v. Nicholson, 244 Ga. 106, 259 S.E.2d 55 (1979).
Unfitness shown by clear and convincing evidence justifies court in acting for child's best interest.
- Parent may lose right to custody if parent is found to be unfit. Unfitness of parent should be shown by clear and convincing evidence that circumstances of case justify court in acting for best interest and welfare of child. White v. Bryan, 236 Ga. 349, 223 S.E.2d 710 (1976).
Appellate court will not interfere with trial court's finding of unfitness absent abuse of discretion.
- When evidence amply authorized, although the evidence did not demand, finding that parent is not a fit and proper person to have custody of children and that it is for best interests and welfare of children that the children be awarded to other person, the appellate court will not substitute the court's judgment for that of the trial judge absent abuse of legal discretion. Adams v. Kirkland, 218 Ga. 512, 128 S.E.2d 730 (1962).
Custody Disputes Between Parent and Third Person
Findings required.
- In every case involving a custody dispute between a parent and a third party, the trial court must first make a determination as to whether the parent has lost his or her right pursuant to O.C.G.A. § 19-7-4 or is unfit pursuant to Georgia case law. Martini v. Jefferson, 213 Ga. App. 666, 445 S.E.2d 814 (1994).
Probate court was without legal authority to make any determination under O.C.G.A. § 19-7-4 regarding the mother's loss of legal custody of her child in favor of a third party. Brown v. King, 193 Ga. App. 495, 388 S.E.2d 400 (1989).
Parent must be made party to proceeding to remove parent as child's natural guardian, and parent must be served with notice, otherwise the proceeding is void as depriving the parent of parental control without due process of law; after the parent has been removed and there is no longer a natural guardian, only then does the judge of the probate court attain jurisdiction to appoint. Whitlock v. Barrett, 158 Ga. App. 100, 279 S.E.2d 244 (1981).
Parent entitled to custody unless shown unfit or child mistreated.
- When a third party sues the custodial parent to obtain custody of a child and to terminate the parent's custodial rights to the child, the parent is entitled to custody of the child unless the third party shows by "clear and convincing evidence" that the parent is unfit or otherwise not entitled to custody under O.C.G.A. §§ 19-7-1 and19-7-4. Heath v. McGuire, 167 Ga. App. 489, 306 S.E.2d 741 (1983); In re C.T.L., 182 Ga. App. 845, 357 S.E.2d 298 (1987); Larson v. Larson, 192 Ga. App. 163, 384 S.E.2d 193 (1989).
When right to custody cannot be legally challenged by third persons.
- Unless parental control had been lost under former Code 1933, §§ 74-108 - 74-110 (see now O.C.G.A. § 19-7-1 or O.C.G.A. § 19-7-4), parent's prima facie right to custody and control of minor child, as against claim of third person, was not subject to legal challenge. Waldrup v. Crane, 203 Ga. 388, 46 S.E.2d 919 (1948).
In contest between parent and third party over custody of child, a parent may lose the right to custody only if one of the conditions specified in O.C.G.A. § 19-7-1 or O.C.G.A. § 19-7-4 is found to exist, or, in exceptional cases, if the parent is found to be unfit. Bozeman v. Williams, 248 Ga. 606, 285 S.E.2d 9 (1981).
As between natural parent and third party (grandparent), parent can be deprived of custody only if one of the conditions specified in O.C.G.A. § 19-7-1 or O.C.G.A. § 19-7-4, or one of the other legal grounds (O.C.G.A. §§ 15-11-2(8) and15-11-81) is found to exist by clear and convincing evidence. Brant v. Bazemore, 159 Ga. App. 659, 284 S.E.2d 674 (1981).
Discretion in habeas proceedings granted by former Code 1933, § 50-121 (see now O.C.G.A. § 9-14-2) applied only when parental control had been lost. Morris v. Grant, 196 Ga. 692, 27 S.E.2d 295 (1943).
Exercise of discretion in habeas proceeding. See Williams v. Ferrell, 231 Ga. 470, 202 S.E.2d 427 (1973); Triplett v. Elder, 234 Ga. 243, 215 S.E.2d 247 (1975); Dein v. Mossman, 244 Ga. 866, 262 S.E.2d 83 (1979).
Person claiming no legal right may not bring habeas proceeding.
- Habeas proceeding to obtain custody may not be brought by person claiming no legal right of custody. This does not mean that one concerned with welfare of child, who is being raised under conditions detrimental to the child's welfare, has no remedy. Spitz v. Holland, 243 Ga. 9, 252 S.E.2d 406 (1979).
Nonrelated third party lacked standing.
- Although former O.C.G.A. § 19-9-50 required that a nonrelated third party be made a "party" to the father's suit against the mother, this was only because the third party had physical custody of the child; she had no standing to petition to terminate the father's rights and acquired no rights by virtue of having been given custody by the mother or by virtue of having developed certain emotional ties after obtaining physical custody of the child. Brooks v. Carson, 194 Ga. App. 365, 390 S.E.2d 859 (1990), overruled on other grounds, Bennett v. Executive Benefits, Inc., 210 Ga. App. 429, 436 S.E.2d 544 (1993).
In dispute between parent and third party, initial determination of parental rights is required. Morris v. Grant, 196 Ga. 692, 27 S.E.2d 295 (1943).
Presumption that child's best interest is to be with parent.
- While in child custody case, welfare of child is always the law's paramount concern, the law presumes that it is in the child's best interest to be with the child's parent if the parent is not unfit to be the child's custodian. Larson v. Gambrell, 157 Ga. App. 193, 276 S.E.2d 686 (1981).
Presumption must be rebutted before custody awarded to third party.
- Before custody of child may be awarded to third party, presumption that it will be in best interest of child to be with the child's parent must be rebutted by clear and convincing evidence showing that the parent is unfit to be awarded custody. Larson v. Gambrell, 157 Ga. App. 193, 276 S.E.2d 686 (1981).
Father's youth and poor work habits.
- Court's finding that father is too young to care for children and that he is somewhat delinquent in his work habits cannot be said to constitute grave and substantial cause for awarding custody to a third party on ground of unfitness. Bowman v. Bowman, 234 Ga. 348, 216 S.E.2d 103 (1975).
Use of best interest standard in third party suit error.
- When a third party sues the natural custodial parent for custody of the child, the trial court errs in applying the "best interests of the child" standard. In such a case, the parent is entitled to custody of the child unless the third party shows by "clear and convincing evidence" that the parent is unfit or otherwise not entitled to custody under O.C.G.A. §§ 19-7-1 and19-7-4. In re J.C.P., 167 Ga. App. 572, 307 S.E.2d 1 (1983). But see In re A.W., 240 Ga. App. 259, 523 S.E.2d 88 (1999).
Effect of awarding permanent custody to third party.
- When a parent was a party to a proceeding in which his or her right to custody was lost and custody was permanently awarded to a third party, the third party, and not the parent, has a prima facie right to custody. Durden v. Barron, 249 Ga. 686, 290 S.E.2d 923 (1982).
For a third party to prevail in obtaining custody in a contest with the surviving parent, clear and convincing evidence that the parent has lost the right to parental custody and control by abandonment or some other legal ground must be presented. In re S.H., 181 Ga. App. 438, 352 S.E.2d 621 (1987).
OPINIONS OF THE ATTORNEY GENERALDomicile of minor is that of the minor's parents, but this can be altered when usual parental authority and control over the minor is ended by voluntary or involuntary relinquishment. 1981 Op. Att'y Gen. No. U81-5.
RESEARCH REFERENCES
Am. Jur. 2d.
- 59 Am. Jur. 2d, Parent and Child, §§ 16, 18, 19.
C.J.S.- 67A C.J.S., Parent and Child, §§ 73 et seq., 87 et seq.
ALR.
- Criminal responsibility for abandonment or nonsupport of children who are being cared for by charitable institution, 24 A.L.R. 1075.
Attempt to bastardize child as affecting right to custody of the child, 37 A.L.R. 531.
Abandonment of adopted child, 44 A.L.R. 820.
One charged with desertion or failure to support wife or child as fugitive from justice, subject to extradition, 54 A.L.R. 281.
Constitutionality of statute which for reformatory purposes deprives parent of custody or control of child, 60 A.L.R. 1342.
Liability of parent or person in loco parentis for personal tort against minor child, 19 A.L.R.2d 423; 41 A.L.R.3d 904.
What constitutes abandonment or desertion of child by its parent or parents within purview of adoption laws, 35 A.L.R.2d 662; 78 A.L.R.3d 712.
Right to custody of child as affected by death of custodian appointed by divorce decree, 39 A.L.R.2d 258.
Criminal liability for excessive or improper punishment inflicted on child by parent, teacher, or one in loco parentis, 89 A.L.R.2d 396.
Award of custody of child where contest is between child's father and grandparent, 25 A.L.R.3d 7.
Award of custody of child where contest is between child's mother and grandparent, 29 A.L.R.3d 366.
Liability of parent for injury to unemancipated child caused by parent's negligence, 41 A.L.R.3d 904.
Physical abuse of child by parent as ground for termination of parent's right to child, 53 A.L.R.3d 605.
Sexual abuse of child by parent as ground for termination of parent's right to child, 58 A.L.R.3d 1074.
Right, in child custody proceedings, to cross-examine investigating officer whose report is used by court in its decision, 59 A.L.R.3d 1337.
Who has custody or control of child within terms of penal statute punishing cruelty or neglect by one having custody or control, 75 A.L.R.3d 933.
Right of indigent parent to appointed counsel in proceeding for involuntary termination of parental rights, 80 A.L.R.3d 1141.
Admissibility of expert medical testimony on battered child syndrome, 98 A.L.R.3d 306.
Custodial parent's sexual relations with third person as justifying modification of child custody order, 100 A.L.R.3d 625.
Liability of parent for injury to unemancipated child caused by parent's negligence - modern cases, 6 A.L.R.4th 1066.
Validity of state statute providing for termination of parental rights, 22 A.L.R.4th 774.
Admissibility at criminal prosecution of expert testimony on battering parent syndrome, 43 A.L.R.4th 1203.