In all writs of habeas corpus sought on account of the detention of a spouse or child, the court on hearing all the facts may exercise its discretion as to whom the custody of the spouse or child shall be given and shall have the power to give the custody of a child to a third person.
(Laws 1845, Cobb's 1851 Digest, p. 335; Code 1863, § 3925; Code 1868, § 3948; Code 1873, § 4024; Code 1882, § 4024; Civil Code 1895, § 2453; Penal Code 1895, § 1226; Civil Code 1910, § 2972; Penal Code 1910, § 1307; Code 1933, § 50-121; Ga. L. 1976, p. 1050, § 2.)
Cross references.- Child custody, generally, T. 19, C. 9, A. 1.
Child Custody Intrastate Jurisdiction Act, T. 19, C. 9, A. 2.
Uniform Child Custody Jurisdiction Act, T. 19, C. 9, A. 3.
Prohibition against use of complaint in nature of habeas corpus to seek change of child custody, § 19-9-23.
Law reviews.- For article, "Custody Disputes and the Proposed Model Act," see 2 Ga. L. Rev. 162 (1968). 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 article surveying legislative and judicial developments in Georgia's divorce, alimony, and child custody laws for 1978-79, see 31 Mercer L. Rev. 75 (1979). For comment on "Grandparents' Visitation Rights in Georgia," see 29 Emory L.J. 1083 (1980).
JUDICIAL DECISIONSANALYSIS
General Consideration
Editor's notes.
- Section19-9-23 now provides that a complaint seeking to obtain a change in the legal custody of a child shall be brought as a separate action. Habeas corpus may not be used for this purpose, nor may such complaint be made as a counterclaim or otherwise in response to a habeas petition seeking to enforce a child custody order. Hence, decisions rendered prior to enactment of § 19-9-23 should be consulted with care.
Superior court without jurisdiction when juvenile court order in effect.
- When a juvenile court order relating to disposition of a deprived child, entered pursuant to former Code 1933, § 24A-2301 (see now O.C.G.A. § 15-11-18) after notice and hearing, was still in effect, the superior court had no jurisdiction of the related habeas corpus petition. West v. Cobb County Dep't of Family & Children Servs., 243 Ga. 425, 254 S.E.2d 373 (1979).
Uses of habeas compared.
- There is a clear distinction between a writ to acquire freedom from a person who is illegally depriving one of one's liberty, and a writ to secure the custody of a child awarded in a divorce decree; in the former, the issue is lawful or unlawful imprisonment while in the latter no imprisonment or liberty is involved, but only the question of who shall have custody of the child. McBurnett v. Warren, 208 Ga. 225, 66 S.E.2d 49 (1951).
In habeas corpus case involving custody of minor child, writ of habeas corpus was appropriate process to bring defendant into court. Tyree v. Jackson, 226 Ga. 690, 177 S.E.2d 160 (1970).
In father's habeas action against divorced wife for daughter's custody, applicable law was former Code 1933, § 74-107 (see now O.C.G.A. § 19-9-3) rather than former Code 1933, § 50-121 (see now O.C.G.A. § 9-14-2). Knox v. Knox, 226 Ga. 619, 176 S.E.2d 712 (1970).
Welfare of child paramount.
- In a habeas corpus proceeding for the possession of a minor, the paramount consideration is the welfare of the child. Weathersby v. Jordan, 124 Ga. 68, 52 S.E. 83 (1905); Walker v. Jones, 1 Ga. App. 70, 57 S.E. 903 (1907); Evans v. Lane, 8 Ga. App. 826, 70 S.E. 603 (1911).
Ordinarily, when habeas corpus is brought to determine the custody of a child, the court has broad discretion, and may award custody even to a stranger, the best interest of the child being the paramount consideration. Crapps v. Smith, 9 Ga. App. 400, 71 S.E. 501 (1911).
In all cases of habeas corpus to determine the custody of a child, the welfare of the child is the paramount consideration, and the court will look into all the circumstances and ascertain what is best for the interest and welfare of the child. Yancey v. Watson, 217 Ga. 215, 121 S.E.2d 772 (1961).
Wishes of minor over 14 not controlling.
- In habeas corpus proceedings to determine who is entitled to custody of a minor over the age of 14, the wish of the minor, while entitled to due consideration, is not in all circumstances necessarily controlling. Chunn v. Graham, 117 Ga. 551, 43 S.E. 987 (1903); Brown v. Harden, 150 Ga. 99, 102 S.E. 864 (1920).
Provision for child support.
- In an order in a habeas corpus action changing child custody from one party to the other, the court can provide therein that child support shall be payable to or by the person to whom custody is awarded. Anglon v. Griffin, 241 Ga. 546, 246 S.E.2d 666 (1978).
Rights of third parties governed by section.
- Provision of former Code 1933, § 74-107 (see now O.C.G.A. § 19-9-3), providing that there was no prima facie right to custody of the child in the father, did not enlarge the rights of third parties, which were governed by former Code 1933, § 50-121 (see now O.C.G.A. § 9-14-2). Knox v. Knox, 226 Ga. 619, 176 S.E.2d 712 (1970).
Habeas not available to one without legal right to custody.
- While former Code 1933, §§ 50-121 and 74-106 (see now O.C.G.A. §§ 9-14-2 and19-9-2) authorized the habeas corpus court to exercise discretion as to possession of a minor child in the circumstances stated therein, no right was given by those statutes to a person claiming no legal right of custody to institute a habeas corpus proceeding. Spitz v. Holland, 243 Ga. 9, 252 S.E.2d 406 (1979).
Interest in humanity
- Habeas corpus is not an available remedy to inquire into the legality of custody of a child when the alleged detention is not against the right of the applicant for habeas corpus. Bennett v. Schaffer, 229 Ga. 59, 183 S.E.2d 760 (1971).
Interest arising from humanity is sufficient to entitle a person to bring a writ of habeas corpus in behalf of one imprisoned, but an interest in humanity is not sufficient to sustain the writ when the petitioner claims custody of the person against another holding custody; in such case, habeas will lie only when the detention is against the right of the applicant. Hall v. Hall, 222 Ga. 820, 152 S.E.2d 737 (1966).
Grandparents held without standing to bring habeas.
- Maternal grandparents, praying for custody of grandchildren or, alternatively, visitation rights, had no standing to bring habeas corpus action against surviving parent, children's father. Spitz v. Holland, 243 Ga. 9, 252 S.E.2d 406 (1979).
Petition seeking recognition of court-awarded visitation rights of custodial parent.
- When petition alleged that father was given visitation right in final divorce decree and that child was being illegally withheld from him by the mother, who absolutely refused to allow such visitations, the superior court did not err in overruling the defendant mother's general demurrer (now motion to dismiss) to the father's petition for a writ of habeas corpus. Smith v. Scott, 216 Ga. 506, 117 S.E.2d 528 (1960).
Nonresident custodial parent bringing habeas against resident noncustodial parent.
- Suit in the nature of habeas corpus to change a decree of custody may not be brought against a custodial parent by a noncustodial parent in the county in which the noncustodial parent resides. Matthews v. Matthews, 238 Ga. 201, 232 S.E.2d 76 (1977).
When nonresident parent who has been awarded custody of a child by court order enters this state to regain that child from the noncustodial parent and files a habeas corpus petition, the trial court may not reconsider the question of legal custody. Bayard v. Willis, 241 Ga. 459, 246 S.E.2d 315 (1978).
Despite a child's attaining the age of 14 and residing in this state with the noncustodial parent, the Georgia court is not authorized to relitigate the issue of legal custody; only a court where the custodial parent resides has the right to award a change in custody. Bayard v. Willis, 241 Ga. 459, 246 S.E.2d 315 (1978).
Attack on foreign decree for lack of jurisdiction.
- On habeas corpus by a father to recover custody of his minor child living with the mother in this state, predicated upon a decree of a Michigan court dissolving his marriage and awarding the child to him, the full faith and credit clause of the federal Constitution did not preclude a court of this state from declaring the Michigan decree void for lack of jurisdiction of the child. Elliott v. Elliott, 181 Ga. 545, 182 S.E. 845 (1935).
Jurisdiction of court not affected by child's location.
- In habeas corpus proceedings to recover custody of a child, mere fact that such child, at the time of the petition, is in a foreign jurisdiction will not deprive the court of jurisdiction, nor be sufficient excuse for not producing the child in obedience to the writ. Crowell v. Crowell, 190 Ga. 501, 9 S.E.2d 628 (1940).
Awarding custody pending divorce when habeas proceeding is pending.
- In determining custody of children, upon a pending suit for divorce, alimony, and custody, judge of the superior court, despite pendency of a habeas corpus proceeding between the same parties, after hearing all the facts and circumstances may exercise sound discretion in awarding custody of the children. Duke v. Duke, 181 Ga. 21, 181 S.E. 161 (1935).
When a habeas corpus proceeding is filed in the probate court involving custody of a minor child, and subsequently a petition is filed involving divorce, alimony, and custody of such child, equity has the power to enjoin the habeas corpus proceeding and determine all the issues in one action. Duke v. Duke, 181 Ga. 21, 181 S.E. 161 (1935).
Superior court is not without jurisdiction to make an award of custody of minor children pending divorce litigation, despite pendency of a habeas corpus proceeding involving one of the children before the judge of the probate court between the same parties. Moody v. Moody, 193 Ga. 699, 19 S.E.2d 504 (1942).
Common-law rule abolished.
- In controversies over custody of children, the common-law rule vesting custody in the father was abolished by this section. Adams v. State, 218 Ga. 130, 126 S.E.2d 624, answer conformed to, 106 Ga. App. 531, 127 S.E.2d 477 (1962).
Mother and father have equal status before habeas court. Gambrell v. Gambrell, 244 Ga. 178, 259 S.E.2d 439 (1979).
Change of custody if circumstances have changed.
- This section does not vest in the court discretion to change a previous judgment awarding custody of the child, in the absence of a change of circumstances involving the welfare of the child which has taken place since rendition of such former judgment. Beavers v. Williams, 194 Ga. 875, 23 S.E.2d 171 (1942).
This section means that even in the face of a former judgment awarding custody that has become final, a habeas corpus court is authorized to change custody of a child if conditions affecting the child's welfare have changed since rendition of the former judgment. Robinson v. Ashmore, 232 Ga. 498, 207 S.E.2d 484 (1974), overruled on other grounds, Durden v. Barron, 249 Ga. 686, 290 S.E.2d 923 (1982).
Vesting of custody in surviving parent on death of custodial parent subject to court's discretion.
- General rule that upon death of the parent who has custody of a child under a divorce decree the right of custody is vested in the surviving parent is subject to the discretionary power of habeas corpus courts. Perkins v. Courson, 219 Ga. 611, 135 S.E.2d 388 (1964).
It was the general rule that on the death of a parent who held custody of a child under a divorce decree, right of custody vested in the surviving parent, but this rule was subject to the discretionary power of habeas corpus courts under former Code 1933, §§ 50-121 and 74-106 (see now O.C.G.A. §§ 9-14-2 and19-9-2), looking to the child's interest and welfare. Peck v. Shierling, 222 Ga. 60, 148 S.E.2d 491 (1966), later appeal, 223 Ga. 1, 152 S.E.2d 868 (1967).
Cited in Beck v. Beck, 134 Ga. 137, 67 S.E. 543 (1910); Crapps v. Smith, 9 Ga. App. 400, 71 S.E. 501 (1911); Williman v. Williman, 138 Ga. 188, 74 S.E. 1077 (1912); Rourke v. O'Neill, 150 Ga. 282, 103 S.E. 428 (1920); Jackson v. Jackson, 182 Ga. 131, 185 S.E. 89 (1936); Shipps v. Shipps, 186 Ga. 494, 198 S.E. 230 (1938); Pruitt v. Butterfield, 189 Ga. 593, 6 S.E.2d 786 (1940); Willingham v. Willingham, 192 Ga. 405, 15 S.E.2d 514 (1941); Kniepkamp v. Richards, 192 Ga. 509, 16 S.E.2d 24 (1941); Kilgore v. Tiller, 194 Ga. 527, 22 S.E.2d 150 (1942); Bond v. Norwood, 195 Ga. 383, 24 S.E.2d 289 (1943); Fortson v. Fortson, 195 Ga. 750, 25 S.E.2d 518 (1943); Faughnan v. Ross, 197 Ga. 21, 28 S.E.2d 119 (1943); Beavers v. Williams, 199 Ga. 114, 33 S.E.2d 343 (1945); Harter v. Davis, 199 Ga. 503, 34 S.E.2d 657 (1945); Richardson v. Hall, 199 Ga. 602, 34 S.E.2d 888 (1945); Moody v. Pike, 200 Ga. 243, 36 S.E.2d 752 (1946); Waller v. Waller, 202 Ga. 535, 43 S.E.2d 535 (1947); Good v. Good, 205 Ga. 112, 52 S.E.2d 610 (1949); Walker v. Steele, 206 Ga. 674, 58 S.E.2d 421 (1950); Cons v. Wipert, 207 Ga. 621, 63 S.E.2d 370 (1951); Bridgman v. Elders, 213 Ga. 257, 98 S.E.2d 547 (1957); Perry v. Perry, 213 Ga. 847, 102 S.E.2d 534 (1958); Bartlett v. Bartlett, 99 Ga. App. 770, 109 S.E.2d 821 (1959); Adams v. Heffernan, 217 Ga. 404, 122 S.E.2d 735 (1961); Blood v. Earnest, 217 Ga. 642, 123 S.E.2d 913 (1962); Bosson v. Bosson, 223 Ga. 793, 158 S.E.2d 231 (1967); Bowen v. Bowen, 223 Ga. 800, 158 S.E.2d 233 (1967); Kerry v. Brown, 224 Ga. 200, 160 S.E.2d 832 (1968); Harper v. Ballensinger, 121 Ga. App. 390, 174 S.E.2d 182 (1970); White v. Bryan, 237 Ga. 349, 223 S.E.2d 710 (1976); Childs v. Childs, 237 Ga. 177, 227 S.E.2d 49 (1976); Edwards v. Edwards, 237 Ga. 779, 229 S.E.2d 632 (1976); Dyer v. Allen, 238 Ga. 516, 233 S.E.2d 772 (1977); George v. Sizemore, 238 Ga. 525, 233 S.E.2d 779 (1977); Warren v. Warren, 238 Ga. 532, 233 S.E.2d 785 (1977); Guest v. Williams, 240 Ga. 316, 240 S.E.2d 705 (1977); Gazaway v. Brackett, 241 Ga. 127, 244 S.E.2d 238 (1978); Sanders v. Sanders, 242 Ga. 641, 250 S.E.2d 488 (1978); Harbin v. Sandlin, 243 Ga. 677, 256 S.E.2d 360 (1979); Munday v. Munday, 243 Ga. 863, 257 S.E.2d 282 (1979); Bryant v. Wigley, 246 Ga. 155, 269 S.E.2d 418 (1980).
Discretion of Court
This section allows the trial court judge to exercise legal discretion in ruling on whether or not the person having custody is unfit or has otherwise forfeited custody rights to the child. Wood v. McGee, 241 Ga. 242, 244 S.E.2d 846 (1978).
Discretion of judge.
- On the hearing of a writ of habeas corpus brought by a father on account of detention of his child, he is not entitled as a matter of right to the child's custody, but the matter is in the discretion of the court, on hearing all the facts; such discretion is vested in the court hearing the habeas corpus, and not in the reviewing court. Smith v. Bragg, 68 Ga. 650 (1882).
In passing upon the questions raised by the petition and answer in a habeas corpus case for possession of minor children, discretion is given by law to the trial judge, who sees and hears the parties, witnesses, and children, and who necessarily has superior opportunities for determining correctly the issues involved. Weathersby v. Jordan, 124 Ga. 68, 52 S.E. 83 (1905). See also Starr v. Barton, 34 Ga. 99 (1864); Payne v. Payne, 39 Ga. 174 (1869).
In all habeas corpus cases for custody of a wife or child, the court, on the hearing, is authorized and required to exercise sound discretion in awarding custody, and is empowered to give custody of a child to a third person. Pruitt v. Butterfield, 189 Ga. 593, 6 S.E.2d 786 (1940).
Discretion conferred on courts by this section is applicable to all courts authorized to grant writ including probate court. Barlow v. Barlow, 141 Ga. 535, 81 S.E. 433, 52 L.R.A. (n.s.) 683 (1914).
Discretion given to judge under this section is not arbitrary and unlimited discretion, but a sound discretion guided by law. Hill v. Rivers, 200 Ga. 354, 37 S.E.2d 386 (1946); Boge v. McCollum, 212 Ga. 741, 95 S.E.2d 665 (1956).
Discretion is not arbitrary and unlimited.
- In writs of habeas corpus sued out on account of detention of child, the court, on hearing all facts, may exercise the court's discretion as to the person to whom custody of the child will be given; but the discretion to be exercised is not an arbitrary and unlimited discretion, but sound discretion guided by law. Saxon v. Brantley, 174 Ga. 641, 163 S.E. 504 (1932).
Discretion should ordinarily be exercised in favor of party with legal custody.
- Discretion vested in trial judge upon a hearing on writ of habeas corpus for custody of a child should ordinarily be exercised in favor of the party having legal right to custody of the child. Boge v. McCollum, 212 Ga. 741, 95 S.E.2d 665 (1956).
Unless child's interest and welfare justifies award to another.
- While judge, upon hearing of a writ of habeas corpus for detention of a child, is vested with discretion in determining to whom the child's custody shall be given, such discretion should be governed by rules of law and be exercised in favor of the party having the legal right, unless evidence shows that the interest and welfare of the child justify the judge in awarding custody to another. Harwell v. Gay, 186 Ga. 80, 196 S.E. 758 (1938); Butts v. Griffith, 189 Ga. 296, 5 S.E.2d 907 (1939); Fowler v. Fowler, 190 Ga. 453, 9 S.E.2d 760 (1940); Girtman v. Girtman, 191 Ga. 173, 11 S.E.2d 782 (1940); Shope v. Singleton, 196 Ga. 506, 27 S.E.2d 26 (1943), overruled in part, Stills v. Johnson, 272 Ga. 645, 533 S.E.2d 695 (2000); Hill v. Rivers, 200 Ga. 354, 37 S.E.2d 386 (1946); Johnson v. Johnson, 211 Ga. 791, 89 S.E.2d 166 (1955); Perkins v. Courson, 219 Ga. 611, 135 S.E.2d 388 (1964).
While judge, on a hearing of writ of habeas corpus for child's custody, is vested with discretion in determining to whom custody should be given, such discretion should be governed by rules of law and exercised in favor of the party having the legal right, unless the evidence shows that the child's interest and welfare justify the award of custody to another, when rivalry between parents as to their child's custody is not involved. Connor v. Rainwater, 200 Ga. 866, 38 S.E.2d 805 (1946).
Discretion vested in trial judge in habeas corpus proceedings with respect to award of custody of minor children ought to be exercised in favor of the party having the legal right, unless the circumstances of the case and the precedents established would justify the court, acting for the welfare of the child, to refuse to do so. Lucas v. Smith, 201 Ga. 834, 41 S.E.2d 527 (1947).
In contest between admitted father of an illegitimate child and third persons, when mother, the only recognized parent, voluntarily released her parental right of custody and control to the third persons, discretion reposed in the trial court in habeas corpus hearing is not arbitrary, but should be exercised in favor of the party having the legal right unless the interest and welfare of the child justifies an award of another. Day v. Hatton, 210 Ga. 749, 83 S.E.2d 6 (1954).
This section is not arbitrary but should be exercised in favor of the party having the legal right, unless the interest and welfare of the child justifies an award for another. Fort v. Alewine, 223 Ga. 359, 155 S.E.2d 12 (1967).
Child's welfare justifies overriding rights of person with legal claim.
- While judge, upon a hearing of a writ of habeas corpus for detention of a child, is vested with discretion in determining to whom custody shall be given, such discretion is not free or arbitrary, but is to be governed by rules of law, and should be exercised in favor of the party having the legal right, unless the evidence shows that the interest and welfare of the child would justify a judge in overriding the rights of the person holding the legal claim. Sherrill v. Sherrill, 202 Ga. 288, 42 S.E.2d 921 (1947); Camp v. Bookman, 204 Ga. 670, 51 S.E.2d 391 (1949).
Trial court's discretion not controlled by appellate court.
- In a habeas corpus proceeding involving a contest between parents over custody of the minor children, the paramount issue is the welfare and best interest of the children, and an award made by the judge, based upon the evidence and in the exercise of sound discretion, will not be controlled by the Supreme Court. Handley v. Handley, 204 Ga. 57, 48 S.E.2d 827 (1948).
In a habeas corpus proceeding involving a contest between parents over custody of minor children, an award made by the trial judge, based upon the evidence and in the exercise of sound discretion, will not be controlled by the appellate court. Benefield v. Benefield, 216 Ga. 593, 118 S.E.2d 464 (1961); Griffis v. Griffis, 229 Ga. 587, 193 S.E.2d 620 (1972).
Changed conditions affecting the welfare of a child, occurring after rendition of a former final custody judgment, which will warrant issuance of new judgment by a habeas corpus court effecting a change of custody or visitation rights, is essentially a fact issue in each individual case which must be decided by the habeas corpus court, and if there is reasonable evidence in the record to support the court's decision in changing custody or visitation rights, then the decision of the habeas corpus court must prevail as a final judgment and will be affirmed on appeal. Robinson v. Ashmore, 232 Ga. 498, 207 S.E.2d 484 (1974), overruled on other grounds, Durden v. Barron, 249 Ga. 686, 290 S.E.2d 923 (1982).
Absent gross abuse.
- In habeas corpus proceedings involving custody of children, the judge must look to the welfare of the children and has very wide discretion, within legal limits, in reference to such matters; when the judge's decision is within the judge's discretion, gross abuse must appear in order to work reversal of the judge's judgment. Lucas v. Smith, 201 Ga. 834, 41 S.E.2d 527 (1947).
Judgment without supporting evidence as gross abuse.
- On hearing a writ of habeas corpus, it is an improper exercise of discretion to render a judgment depriving one legally entitled to custody of a minor child of that custody, and awarding such custody to another, when there is undisputed evidence showing a right and fitness of the former to have such custody and no evidence to the contrary. Saxon v. Brantley, 174 Ga. 641, 163 S.E. 504 (1932).
While trial court has wide discretion in passing on the evidence upon a writ of habeas corpus for child custody, a judgment without any evidence to support it is a gross abuse of discretion and cannot be allowed to stand. Dutton v. Freeman, 213 Ga. 445, 99 S.E.2d 204 (1957).
Third Persons
Court's discretion limited when parent and third person dispute custody.
- Former Code 1933, §§ 50-121 and 74-106 (see now O.C.G.A. §§ 9-14-2 and19-9-2) have been construed to give only limited discretion to a trial judge when a parent and a third person are disputing custody of a child. Spitz v. Holland, 243 Ga. 9, 252 S.E.2d 406 (1979).
Discretion to award custody to third person when parent is found unfit.
- Legal or parental right to custody is subject to challenge on the ground of unfitness for the trust, and court in habeas corpus cases has discretion to award custody to a third person when such unfitness is found. Perkins v. Courson, 219 Ga. 611, 135 S.E.2d 388 (1964).
Court in habeas corpus cases has discretion to award custody to a third person when parental unfitness is found. Peck v. Shierling, 222 Ga. 60, 148 S.E.2d 491 (1966), later appealed, 223 Ga. 1, 152 S.E.2d 868 (1967).
No discretion to award custody to third person unless parental rights have been lost.
- When there was a contest between a parent and a third party over custody of a minor child, the first question to be determined was whether or not parental control had been lost by the parent; while former Code 1933, § 50-121 (see now O.C.G.A. § 9-14-2) stated that the court may exercise discretion as to whom custody shall be given, it can apply only if the parent had lost control by one of the methods stated in former Code 1933, §§ 74-108 - 74-1101 (see now O.C.G.A. §§ 19-7-1 and19-7-4). Morris v. Grant, 196 Ga. 692, 27 S.E.2d 295 (1943), overruled on other grounds, White v. Bryan, 236 Ga. 349, 223 S.E.2d 710 (1976); Skinner v. Skinner, 204 Ga. 635, 51 S.E.2d 420 (1949); Morrison v. Morrison, 212 Ga. 48, 90 S.E.2d 402 (1955); Woods v. Martin, 212 Ga. 405, 93 S.E.2d 339 (1956), overruled on other grounds, White v. Bryan, 236 Ga. 349, 223 S.E.2d 710 (1976).
Discretion vested in the judge by this section is not free or arbitrary but is to be governed by rules of law and should be exercised in favor of the party having the legal right, unless evidence shows that such party has lost the party's right in some way recognized by law. Watkins v. Terrell, 196 Ga. 651, 27 S.E.2d 329 (1943).
In reaching judgment on a habeas corpus proceeding involving custody of a minor child, the presiding judge should award custody to the person legally entitled thereto, unless it is made to appear that the person lost this right or that the security, morals, or welfare and interest of the child require another disposition. Hill v. Rivers, 200 Ga. 354, 37 S.E.2d 386 (1946).
This section is applicable only when parental control has been lost. Waldrup v. Crane, 203 Ga. 388, 46 S.E.2d 919 (1948), overruled on other grounds, Perkins v. Courson, 219 Ga. 611, 135 S.E.2d 388 (1964).
After the mother of child to whom custody had been awarded by a divorce decree died, prima facie right of custody automatically inures to father; in such circumstances, the 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 and19-7-4), and unless so lost, discretion reposed in 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), overruled on other grounds, Perkins v. Courson, 219 Ga. 611, 135 S.E.2d 388 (1964).
Trial court, upon hearing a writ of habeas corpus for detention of a child, was vested with discretion in determining to whom the child's custody shall be given; such discretion should be governed by the rules of law and be exercised in favor of the party having the prima facie legal right to custody of the child, unless the evidence showed that such person had lost the right to custody through one of the ways recognized in former Code 1933, §§ 74-108 - 74-110 (see now O.C.G.A. §§ 19-7-1 and19-7-4) or through unfitness. Wentworth v. Middleton, 242 Ga. 43, 247 S.E.2d 846 (1978); Dein v. Mossman, 244 Ga. 866, 262 S.E.2d 83 (1979).
Tests for determining custody as between parents and as between parent and third person distinguished.
- In divorce action in which child custody is an issue, test for use by the trial court in determining which parent shall have child custody is the best interests of the child, but when a third party, such as a grandparent, is being awarded custody of a child as part of a divorce case, or when a third party sues to obtain child custody from a parent, the test is not simply the "best interests" or "welfare" of the child; in such cases, a parent is entitled to be awarded custody by the trial court, unless it is shown by clear and convincing evidence that such parent is unfit or otherwise not entitled to custody under the laws. Higbee v. Tuck, 242 Ga. 376, 249 S.E.2d 62 (1978). But see Durden v. Barron, 249 Ga. 686, 290 S.E.2d 923 (1982).
Clear and satisfactory proof required for award to third person.
- Rule in habeas corpus cases is that a parent may lose custody to a third person upon the ground that the parent is unfit for custody, if it is shown by clear and satisfactory proof that the circumstances of the case justify the court in acting for the best interest and welfare of the child. Shaddrix v. Womack, 231 Ga. 628, 203 S.E.2d 225 (1974).
Procedural Matters
Strict technical pleadings are not required in habeas corpus proceeding between rival contestants for custody of minor children; when a writ has been issued and in response thereto the children have been brought into court, the better practice is to inquire into the evidence necessary to a proper decision of the case, unless the petition alleges facts which show affirmatively as a matter of law that the respondent is entitled to custody of the children. Sheppard v. Sheppard, 208 Ga. 422, 67 S.E.2d 131 (1951).
Lack of application for writ of habeas corpus.
- When custody of an infant child was sought by one having a right thereto, writ of habeas corpus would not be dismissed on the ground that the judge who issued the warrant directing the sheriff to take custody of the child until the date of the habeas hearing fixed in the warrant based the warrant upon an affidavit, and that no regular application for the writ of habeas corpus had been filed; the judge did not err in allowing an amendment which was in substance a regular application for the writ, to make the proceedings regular and formal, before the writ was issued authorizing the sheriff to take custody of the child. Vincent v. Vincent, 181 Ga. 355, 182 S.E. 180 (1935), overruled on other grounds sub nom. Camp v. Camp, 213 Ga. 65, 97 S.E.2d 125 (1957).
Procedure for trial of habeas.
- No different procedure is provided for obtaining trial of writ of habeas corpus under this section than for trial of habeas corpus generally; rather, it is contemplated that the writ shall issue and be tried under this section as provided for habeas corpus generally. Collard v. McCormick, 162 Ga. 116, 132 S.E. 757 (1926).
Evidence in habeas proceedings.
- Court is not required to sanction the use of affidavits in habeas corpus proceedings, and on hearing under writ of habeas corpus involving custody of a child, the better practice is to require testimony to be delivered from the stand or by depositions or interrogatories duly taken with the privilege of cross-examination preserved, where practicable. Camp v. Camp, 213 Ga. 65, 97 S.E.2d 125 (1957).
Pursuant to former Code 1933, §§ 50-121 and 74-107 (see now O.C.G.A. § 19-9-3), it was incumbent upon a trial judge to hear evidence from both contesting parties with respect to what disposition of the child would be in the child's best interest; for one of the parties to be prohibited from presenting evidence would be an improper exercise of the discretion lodged in the trial court. Mitchell v. Ward, 231 Ga. 671, 203 S.E.2d 484 (1974).
All facts and conditions up to entry of judgment to be considered.
- Judgment in a habeas corpus case establishes the rights of the parents to custody of their children under the facts existing at the time of rendition of the judgment; thus, the trial court must consider all facts and conditions which present themselves up to the time of rendering the judgment, not merely facts and conditions which occur prior to filing of the petition. Westmoreland v. Westmoreland, 243 Ga. 77, 252 S.E.2d 496 (1979).
Conclusiveness of judgments on habeas.
- While judgments in habeas corpus proceedings instituted by parents to secure custody of their minor children are conclusive upon the parents, such conclusiveness relates to the status existing at the time of the rendition of such judgments; change of status may authorize a different judgment in a subsequent proceeding. Handley v. Handley, 204 Ga. 57, 48 S.E.2d 827 (1948).
Judgment in a habeas corpus proceeding instituted by parents to secure custody of their minor children is conclusive upon the parents unless a material change of circumstances affecting the welfare of the children is made to appear. Handley v. Handley, 204 Ga. 57, 48 S.E.2d 827 (1948).
Judgment in a habeas corpus case is impressed with the same degree of finality on the facts as they then exist as is any other decision of any court involving custody of minor children. Johnson v. Johnson, 211 Ga. 791, 89 S.E.2d 166 (1955).
Reversal of probate court by superior court held error.
- When probate court hearing a habeas corpus case awarded custody of the children to the mother, it was error for the superior court to reverse the probate court's judgment. Coleman v. Way, 217 Ga. 366, 122 S.E.2d 104 (1961).
Specific Application
Award to mother rather than brother upheld.
- Upon trial of a habeas corpus proceeding, involving right to custody of 13 year old girl, court did not err in awarding such custody to the child's widowed mother, rather than to the child's unmarried 21 year old brother, it being shown that the mother was of good character and able to care for her daughter. Beck v. Beck, 134 Ga. 137, 67 S.E. 543 (1910).
Award to grandmother as abuse of discretion when father not unfit.
- When father of a child is a man of good character, has a regular job, is well able financially to support a child, maintains a home of good environment, and there is no evidence showing his abuse or ill treatment of the child, the trial judge abused the judge's discretion in awarding custody of the child to the maternal grandmother. Hill v. Rivers, 200 Ga. 354, 37 S.E.2d 386 (1946).
Grandparents held to have no equitable or prescriptive right to custody.
- When, in a habeas corpus proceeding, a divorced father sought to regain custody of a son from the boy's grandfather, the fact that final order granting custody to the father was not filed until six months after the evidentiary hearing did not create an equitable or prescriptive right to custody in the grandparents. Hilliard v. Hilliard, 243 Ga. 424, 254 S.E.2d 372 (1979).
Discretion of court as to custody of minor wife.
- When a husband and a parent are both claiming custody of a minor wife, the discretion of the presiding judge in awarding the possession of her person will not be interfered with unless grossly abused. Boyd v. Glass, 34 Ga. 253, 89 Am. Dec. 252 (1866); Gibbs v. Brown, 68 Ga. 803 (1882). See also Atkinson v. Atkinson, 160 Ga. 480, 128 S.E. 765 (1925).
RESEARCH REFERENCES
Am. Jur. 2d.
- 39 Am. Jur. 2d, Habeas Corpus and Postconviction Remedies, §§ 72, 74, 75, 143, 160.
13 Am. Jur. Pleading and Practice Forms, Habeas Corpus, § 238.
C.J.S.- 39 C.J.S., Habeas Corpus, §§ 217, 222 et seq. 39A C.J.S., Habeas Corpus, §§ 427, 428.
ALR.
- Pending suit for annulment, divorce, or separation as affecting remedy by habeas corpus for custody of child, 82 A.L.R. 1146.
Jurisdiction of court in divorce suit to award custody of child as affected by orders in, or pendency of, proceedings in habeas corpus for custody of child, 110 A.L.R. 745.
Child custody provisions of divorce or separation decree as subject to modification on habeas corpus, 4 A.L.R.3d 1277.
Court's power in habeas corpus proceedings relating to custody of child to adjudicate questions as to child's support, 17 A.L.R.3d 764.
Right of putative father to visitation with child born out of wedlock, 58 A.L.R.5th 669.