(Code 1981, §29-2-2, enacted by Ga. L. 2004, p. 161, § 1.)
RESEARCH REFERENCES
Am. Jur. 2d.
- 39 Am. Jur. 2d, Guardian and Ward, §§ 38 et seq., 46 et seq.
13 Am. Jur. Pleading and Practice Forms, Guardian and Ward, § 116 et seq.
C.J.S.- 39 C.J.S., Guardian and Ward, § 24 et seq.
PART 2 PARENTAL RIGHTS IN GUARDIAN SELECTION
29-2-3. Guardian of minor children in event of divorce; death of spouse or former spouse.
(Code 1981, §29-2-3, enacted by Ga. L. 2004, p. 161, § 1.)
Cross references.- Parent and child relationship generally, § 19-7-1 et seq.
Circumstances justifying removal of child from parental custody, § 19-7-4.
Law reviews.- For article, "Trusts for Dependents: Effect of Georgia's Support Obligation on Federal Income Taxation," see 8 Ga. St. B.J. 323 (1972).
JUDICIAL DECISIONSANALYSIS
General Consideration
Editor's notes.
- In light of the similarity of the statutory provisions, decisions under former Code 1868, § 1794, former Code 1895, § 2513, former Civil Code 1910, § 3032, former Code 1933, § 49-102, and former O.C.G.A. § 29-4-2 are included in the annotations for this Code section.
O.C.G.A.
§ 19-7-1 and former O.C.G.A. § 29-4-2 must be construed together. - See McCallum v. Bryant, 212 Ga. 348, 92 S.E.2d 531 (1956) (decided under former Code 1933, § 49-102).
Necessity for appointing guardian ad litem.
- Whenever a minor appears as a petitioner in instituting litigation by a next friend, there would seem to be no legal necessity to appoint a guardian ad litem, unless, for some reason, it should be made to appear to the court that the next friend is not a suitable person or for some other reason interests of minor would not be properly protected. Sanders v. Hinton, 171 Ga. 702, 156 S.E. 812 (1931) (decided under former Civil Code 1910, § 3032).
Binding in courts of law and equity.
- Former Code 1868, § 1794 (former O.C.G.A. § 29-4-2) was for protection of rights of minor children and was as imperative and binding in courts of equity as in courts of law. Southwestern R.R. v. Chapman, 46 Ga. 538 (1872) (decided under former Code 1868, § 1794).
For discussion of scope of natural guardianship, see Jordan v. Smith, 5 Ga. 559, 63 S.E. 595 (1909) (decided under former Code 1895, § 2513).
Imbecile minor presents no exception to this rule. Brown v. Gibson, 203 Ga. 213, 46 S.E.2d 68 (1948) (decided under former Code 1933, § 49-102).
Ward without recourse cannot be bound.
- When child has no recourse against representative, then authority to bind child cannot exist. Lynn v. Wagstaff Motor Co., 126 Ga. App. 516, 191 S.E.2d 324 (1972) (decided under former Code 1933, § 49-102).
Cited in Southwestern R.R. v. Chapman, 46 Ga. 557 (1872); Lamar v. Harris, 117 Ga. 993, 44 S.E. 866 (1903); Fidelity & Deposit Co. v. Norwood, 38 Ga. App. 534, 144 S.E. 387 (1928); Bulloch v. Bulloch, 45 Ga. App. 1, 163 S.E. 708 (1932); Chapin v. Cummings, 191 Ga. 408, 12 S.E.2d 312 (1940); Walden v. Walden, 191 Ga. 182, 12 S.E.2d 345 (1940); King v. King, 203 Ga. 811, 48 S.E.2d 465 (1948); Faith v. Massengill, 104 Ga. App. 348, 121 S.E.2d 657 (1961); Kennison v. Lee, 217 Ga. 155, 121 S.E.2d 821 (1961); Ingle v. Rubenstein, 112 Ga. App. 767, 146 S.E.2d 367 (1965); Georgia Mut. Ins. Co. v. Nix, 113 Ga. App. 735, 149 S.E.2d 494 (1966); Summerour v. Summerour, 131 Ga. App. 519, 206 S.E.2d 535 (1974); Jordan v. Goff, 160 Ga. App. 636, 287 S.E.2d 640 (1981); Anaya v. Coello, 279 Ga. App. 578, 632 S.E.2d 425 (2006).
Rights of Natural Guardian
Cannot appoint guardian of person unless natural guardian lost status.
- The probate court has no authority to appoint another as guardian of the person of a child with a living natural guardian unless the loss of that status has been ascertained and declared in some regular proceeding authorized by law, after due notice is given. Whitlock v. Barrett, 158 Ga. App. 100, 279 S.E.2d 244 (1981) (decided under former O.C.G.A. § 29-4-2).
When natural mother of illegitimate child showed that she was the child's mother, that her parental rights had not been relinquished or forfeited in some regular proceeding authorized by law, and that she was, therefore, the natural guardian of the child, the probate court was without jurisdiction to appoint someone else as the guardian of the child's person. Whitlock v. Barrett, 158 Ga. App. 100, 279 S.E.2d 244 (1981) (decided under former O.C.G.A. § 29-4-2).
Mother of illegitimate child is the child's natural guardian with prima-facie right to custody. Whitlock v. Barrett, 158 Ga. App. 100, 279 S.E.2d 244 (1981) (decided under former O.C.G.A. § 29-4-2); Brown v. King, 193 Ga. App. 495, 388 S.E.2d 400 (1989);(decided under former O.C.G.A. § 29-4-2).
Surviving parent's right to custody of child cannot be divested by will of deceased parent. Girtman v. Girtman, 191 Ga. 173, 11 S.E.2d 782 (1940) (decided under former Code 1933, § 49-102).
Parent may forfeit rights as guardian by cruel treatment.
- Father has right to be guardian of his minor children, but he may forfeit such right by cruel treatment or neglect of them. McCallum v. Bryant, 212 Ga. 348, 92 S.E.2d 531 (1956) (decided under former Code 1933, § 49-102).
Parental rights not relinquished by custody agreement.
- Although the petitioner argued the appointment of guardianship was proper because the mother, the natural guardian of the minor children involved, had voluntarily waived her parental rights and consented to the award of guardianship by sworn affidavit, the affidavit clearly conferred only temporary custody, and made no reference to permanent guardianship. Parental rights are not relinquished by an agreement granting mere custody. Hill v. Loren, 187 Ga. App. 71, 369 S.E.2d 260, cert. denied, 187 Ga. App. 907, 369 S.E.2d 260 (1988) (decided under former O.C.G.A. § 29-4-2).
Custody right under divorce decree inures to surviving parent.
- Upon death of parent who has held custody under divorce decree, the right to custody automatically inures to surviving parent, and divorce proceeding fails so far as concerns any further right to custody of children. Girtman v. Girtman, 191 Ga. 173, 11 S.E.2d 782 (1940) (decided under former Code 1933, § 49-102).
Natural guardian may not sign away child's chose of action.
- A chose in action is property and a natural guardian has no more authority to sign it away than the guardian would have to sell tangible property of child. Lynn v. Wagstaff Motor Co., 126 Ga. App. 516, 191 S.E.2d 324 (1972) (decided under former Code 1933, § 49-102).
Bond
Requirement of bond applies to income of property and corpus.
- Provision of former Code 1868, § 1794 (former O.C.G.A. § 29-4-2), requiring that guardian give bond before the guardian can demand and receive property of child, applied to income of property as well as to corpus thereof. Southwestern R.R. v. Chapman, 46 Ga. 538 (1872) (decided under former Code 1868, § 1794).
Effect of giving bond by natural guardian.
- The only effect of giving bond by natural guardian is to empower the guardian to demand and receive any property belonging to the child. Drake v. Drake, 187 Ga. 423, 1 S.E.2d 573 (1939) (decided under former Code 1933, § 49-102).
OPINIONS OF THE ATTORNEY GENERAL
Editor's notes.
- In light of the similarity of the statutory provisions, opinions under former Code 1933, § 49-102 and former O.C.G.A. § 29-4-2 are included in the annotations for this Code section.
Probate court without authority to appoint guardian if living parent.
- Unless an appointment of a temporary guardian was made under former O.C.G.A. § 29-4-4.1, a probate court was without authority to appoint a guardian of the person for a minor child if the child had living parents, unless the parents relinquished or forfeited their rights in the child. 1983 Op. Att'y Gen. No. U83-37 (decided under former O.C.G.A. § 29-4-2).
Child support transfer not benefitting child improper.- Transfer by parent of child support judgment without benefitting child is inconsistent with parent's duties as natural guardian of child and child's property. 1972 Op. Att'y Gen. No. 72-147 (decided under former Code 1933, § 49-102).
Parents responsible for locating child absent from school without authorization.- Whereabouts of minor child would clearly seem to fall within area of parental or guardianship responsibility, and therefore, primary responsibility for locating a child who is absent from an educational center or school on an unauthorized basis would fall upon parents or other guardians or custodians. 1978 Op. Att'y Gen. No. 78-48 (decided under former Code 1933, § 49-102).
Domicile of minor is that of parents, but this can be altered where usual parental authority and control over the minor is ended by voluntary or involuntary relinquishment. 1981 Op. Att'y Gen. No. U81-5 (decided under former O.C.G.A. § 29-4-2).
RESEARCH REFERENCES
Am. Jur. 2d.
- 39 Am. Jur. 2d, Guardian and Ward, §§ 5 et seq., 89, 90.
13 Am. Jur. Pleading and Practice Forms, Guardian and Ward, §§ 2 et seq., 18 et seq.
C.J.S.- 39 C.J.S., Guardian and Ward, §§ 12, 16.
ALR.
- Leave of court as prerequisite to action on statutory bond, 2 A.L.R. 563.
Minority of parent as affecting right to guardianship or custody of person or estate of child, 19 A.L.R. 1043.
Attempt to bastardize child as affecting right to custody of the child, 37 A.L.R. 531.