*1 of to exercise empowered it is "authorized rights of way in the condemnation of eminent domain of state system thereon for the use of the property . . highways; Hwy. Dept.,
In Barrett v. State
It would cause inconvenience to the property, condemnor to first condemn the railroad required which the railroads would be to condemn the present condemnee. The condemnor has property for contracted with the the ac- companies railroad exchange for quisition rights way property their convenience public on which to relocate their tracks. The same, is thus served and the ultimate result is the would be property either event the condemnee acquired. case, where
Under circumstances exchange condemned with the railroads will property public purpose, property be used for a we hold that use, condemned is for and the condemnation highway power is a valid exercise of the condemnor’s proceeding of eminent domain. All the concur.
Judgment Justices affirmed. 27725. BENNETT v. CLEMENS et al. February Argued 8, 13, 1973 Decided March Rehearing 22, March 1973. denied *2 Levine, appellant. Irwin M.
Hicks, Hicks, John H. Scroggins, Eubanks & appellees. 1. that Justice. Enumeration one contends
Jordan, determining grandparents court erred "not that had no shown have dismissing petition.” therefore erred in not petition record before shows no motion to dismiss the us question nor other effort in the trial court any standing petitioners bring corpus the habeas such action. This enumeration is without merit. As to standing petitioners, see Harper Ballensigner, 693). (1) (177 828 Ga. 2. The other complain enumerations of the award of to the retaining instead of in the mother or awarding same to the natural father. The father, witness, while a was not a in the trial court nor appellants one in this The only question court. here is whether court under the evidence presented abused concerning its discretion the welfare of the child in awarding grandparents. and,
The evidence is voluminous conflicting while aspects, mother, some authorized the findings husband, her divorcing moved to Atlanta and lived for several years different locations with the worked for a "underground” so-called newspaper, she had been arrested for possession marijuana and on a plea of nolo contendere given year a two sentence on probation, in the fall of 1970 she left Atlanta to attend Delaware, the funeral of her leaving mother in child friends, defendant, female one of whom was a and thereafter went to San Francisco where she has since *3 lived while pursuing her vocation as a poet; writer and that the female friends with whom she left the child "pot” occasions, smoked on engaged in sexual acts with men and with each other in presence the otherwise taught the child gay about "the life.”
In a proceeding involving custody a change party having legal circumstances custody of the child which affects the child’s materially welfare, will authorize the court in the exercise of a sound protect discretion to the welfare of the child. Under facts as shown by this record we cannot that say court abused that awarding discretion by custody child to the petitioners.
Judgment except concur, All the Justices affirmed. Gunter, JJ., Hawes and who dissent. Justice, dissenting. dissenting opinion This
Gunter, time, believe, relates to an issue whose I has come. The state, thesis of this dissent through judicial its by impose devised branch, a standard cannot upon parents judges a determination of a child when permanent concerning the loss of made must be party. parents third to a of the child paternal brought by corpus action This habeas temporary nine-year-old child to secure aof They that permanent contended the child. "commune-type living environment in a the child was to the immoral, and deleterious unwholesome is which being” of the child. well welfare and testimony hearing, judge heard trial conducted transcribed which when con- thirteen witnesses from (300) pages, approximately three hundred sisted permanent granting judgment entered a and he then custody grandparents. This of the child judgment. appeal from that is parents are both that the The record discloses they graduates Merit National were of Harvard where ago years They and the divorced several Scholars. were permanent the child. awarded mother was child’s in the record is no evidence There being no physical is cared for. There were not needs neglected, the child was in the record evidence any way. evidence There was abused, mistreated church school and the child attended the record regularly. Psychiatrist, Miller, an Internist and
Dr. Lila Bonner examining lived, she and those with whom the child great girl and whatever is a little She testified:"... happened pretty really it is one I don’t think her is fine. people loving person. This child her. think it is a lot of I Miller Dr. love, about that.” there is no doubt has felt opinion been child had in her further testifed that *4 living "healthy environment.” a retain to that she wanted natural mother testified
The caring capable properly custody for the child.
The natural father testified that he wanted his former child, wife to have of the if custody she could child, then custody custody have he wanted but that he did not want his 65-year-old parents, child’s paternal grandparents, to have of the child. complaint
As I read this record the only by being brought up the child is an immoral, environment, hippy-type rearing and that of a child in such an environment is not in the child’s best interest.
It has
the law in this
that a natural
long been
state
parent
paramount
legal right
has a
of his or
her child in a
a third
and when a
party,
contest with
resisted,
regard
is
a
parent’s right
proper
sanctity
parental
requires
relation
can
objection
paramount
legal
right
only
to this
be
The
satisfactory
sustained
clear
evidence.
by
discretion to
exercised
courts in such contests is not
be
parent
The
that binds
arbitrary.
breaking
the tie
child to each other can never be
without
justified
reasons,
by plain
most solid and substantial
established
312)
In that either beyond question the instant case is legal parent paramount of this child has the reasons, custody. claim to her Have solid and substantial the forfeiture of by plain proof, given established been claim? I no. paramount legal plainly say upon to intrude concept right of the state’s relationship respect privacy parent-child limited to a situation manner which a child is reared is abused, in some where a or mistreated child is neglected, manner. abuse, in some manner neglect,
Where
or mistreatment
absent,
a
inquire into what
is
the state has no
parent
or with
allows
parent
teaches his
whom
associate,
a parent
of environment
type
his child to
*5
fundamental
These are
to inhabit.
his child
permits
Bill
our
Law and
the Common
rights, protected by
family
to
intrusion. Freedom
governmental
free from
Rights,
of
with
teach,
of association
think,
express;
freedom
and
degrees
varying
persons
of
persons or classes
other
a chosen
to inhabit
freedom
philosophy;
and
of
adopt
life-style
to
environment;
and freedom
cultural
all of
majority;
approval
not have the
may
these
liberty,
of
and
concept
to our
these are basic
family
within the
emphatically
more
freedoms exist even
relationship.
parent-child
or the
parent
the
family
or
relationship
this
Within
and
the members’ conduct
a moral standard for
adopts
disrupt
associations,
upon
cannot
intrude
and the state
standard,
a different moral
relationship by asserting
to.
that must be adhered
by judges,
conceived
in the case
concurring opinion
in his
Mr. Justice White
1678,
Connecticut,
SC
In a contest between only justification permanent parent the natural that I can see for the state to divest neglected, the child is permanent abused, a child is in some manner. What or mistreated associate, with whom a child is allowed taught, inhabit, environment that a permitted child is —none of these individually and all of them in concert do state, constitute justification substantial for the through its to divest a judiciary, parent permanent custody of his child.
In this case both of the natural parents of the child were before the court at the habeas corpus hearing and both Nevertheless, testified. judge, his final judgment awarding permanent custody of child to the grandparents, following included the in his *6 judgment: father, Clemons, Jr., "The John being action, this being there no opportunity to have an investigation him, made of it is hereby judged made, that no ruling is express implied, or one or the way other, as to the custody or visitation rights of said father.”
It is clear to me that judge this case abused his discretion in awarding permanent custody of child to her grandparents. And with all due deference to my brothers of I majority, think that they merely substituted their standard of that of the natural parents of the in affirming child judgment below.
I would reverse the judgment. I dissent. respectfully I am authorized to state that joins Mr. Justice Hawes in this dissent.
27751. HUMBLE OIL & REFINING COMPANY v.
MITCHELL et al. Justice. Humble complaint filed its in three Jordan, against counts Mitchell and Cook in Su- DeKalb Court, perior reformation, rescission, seeking compensation enrichment, for unjust being asserted $20,000 substance that agreed Humble to sell for Mitchell and Cook a tract of land determined be