37 S.E.2d 386 | Ga. | 1946
Under the facts and circumstances in this case, the trial court, in a habeas-corpus proceeding abused its discretion in awarding custody of a minor to the maternal grandmother; and the judge of the superior court did not err on certiorari in reversing the judgment of the trial court and remanding the case for a further hearing.
On the hearing, the following facts were developed: On November 6, 1941, the plaintiff and the defendant were divorced, the minor child being awarded to the plaintiff, and the defendant being required to pay to the plaintiff $7 per week as alimony for the support of the child. Shortly afterward both parents remarried. The father of the child established a home in Macon, Georgia; the mother remained in Atlanta, retained custody of the child, but between school terms permitted the child to spend the summer months with his father.
In 1944, after the child had been with his father for several *355 months during the summer, the mother sought to regain custody, which was refused by the father, and the present action was instituted. Other pertinent details of the evidence will be discussed in the opinion.
At the conclusion of the evidence, the judge of the city court, sitting as a habeas-corpus court, pronounced an oral judgment, in which it was found that the mother of the child was not a person of fit character to have the custody of the child, that both the father and the maternal grandmother of the child were persons of good moral character, that the welfare of the child could best be served by awarding custody to the maternal grandmother; and custody was awarded to the maternal grandmother, Mrs. L. C. George, a resident of St. Louis, Missouri. She was required to give bond and to allow the child to visit the father for two months during the summer of each year. Before this judgment was reduced to writing, counsel for the father informed the court that they had information to the effect that the home of the maternal grandmother was not a fit and proper place for the child to reside. Thereupon the court announced that the judgment would not be signed until an investigation could be made of the home of the maternal grandmother by the juvenile court authorities of Bibb County. There was no objection to this action of the court. An investigation was made, a favorable report obtained, and the judgment, which had been transcribed by the official reporter, was then signed. Thereafter, counsel for the defendant moved that the case be reopened in order that a similar investigation might be made of the defendant's home. The motion was overruled. Counsel for the defendant then moved that the judgment awarding custody of the child be vacated and set aside, and this motion was overruled.
On certiorari to the Superior Court of Bibb County, the judgment of the lower court was reversed, the judgment of reversal being, in part, as follows: "In the opinion of this court, the city court judge erred, after having on its own motion had the welfare department report on the condition of the maternal grandmother's home, in not granting the father's request that the court have the welfare department report on the character of the father's home. In no other way could the court have obtained equal information as to the comparative merits of the two homes. The *356 comparative merits of the two homes under consideration by the judge should have been measured by the same yard stick. The judgment of the lower court is reversed, and the case is referred back to the city court to be tried in accordance with the above views."
The exceptions are to this judgment and the overruling of a motion to vacate it.
In the view we take of this case, it is unnecessary to determine whether the judge of the superior court was correct in the reason given for his judgment of reversal. If the judgment is right, it should be sustained, though the reasons given for the judgment may be erroneous. Coker v. Atlanta,
This is a controversy between parents over the custody of their minor son. The maternal grandmother, who was not a party to the controversy, but who appeared and testified at the trial, was awarded the custody. By undisputed testimony it was established that the father of the child is a man of good character; that he has a regular job and is well able financially to support the child. He maintains a home of good environment, where the child resided and was supported by him for several months before the institution of the present action. No evidence was offered showing his abuse or ill-treatment of the child. Undisputed evidence also showed that the child's maternal grandmother is a woman of good character, who is financially able to support the child. Voluminous evidence was offered as to the unfitness of the mother to have the custody of the child.
The controlling question is whether the trial judge abused his discretion in awarding custody of the child to the maternal grandmother. In determining this question, we consider first the relative rights of the parties.
The Code, § 74-108, provides: "Until majority, the child shall remain under the control of the father, who is entitled to his services and the proceeds of his labor." By this same section it is provided that this parental power shall be lost by either of six means, among them, "failure of the father to provide necessaries for his child, or his abandonment of his family." *357
Prior to the passage of the act of 1913 (Ga. L. 1913, 110), in cases involving the custody of a child, the prima facie right of custody was in the father, if living, unless he had lost that right in one of the modes prescribed by the Code, § 74-108. This right of custody was recognized even in controversies between the father and the mother of the child. By the act of 1913, it was provided: "In all cases where the custody of a minor child or children is involved between the parents, there shall be no prima facie right to the custody of such child or children in the father, but the court hearing such issue of custody may exercise its sound discretion, taking into consideration all the circumstances of the case, as to whose custody such child or children shall be awarded, the duty of the court being in all such cases in exercising such discretion to look to and determine solely what is for the best interest of the child or children, and what will best promote their welfare and happiness, and make award accordingly."
Under the present status of our law, as between parents ordinarily no prima facie right of custody exists. But in this case the decree of Fulton Superior Court, awarding custody to the mother, vested in her the prima facie right of custody. This judgment, however, is not conclusive, except as to the status existing at the time of its rendition, and is subject to a change or modification on a showing of a change in circumstances or conditions since the rendition of the decree. Milner v.Gatlin,
In the instant case, the trial court found that the mother's right of custody had been forfeited because of her unfitness of character, and this finding is supported by abundant evidence. With that forfeiture of custody, where stands the father with regard to his right of custody?
This court is committed to the proposition that where the mother of a child, to whom custody has been awarded by a divorce decree, dies, the prima facie right of custody automatically inures to the father. Chapin v. Cummings,
The questions we deal with have been so ably discussed inSloan v. Jones,
"In Miller v. Wallace,
"In Williams v. Crosby,
"It will thus be seen that prima facie the right to the custody *362 of an infant is generally in the father, if living; but that this may be resisted on the ground of unfitness for the trust, or other good cause; and that, in reaching his judgment on a habeas-corpus proceeding involving the custody of the minor child, the presiding judge should award the custody to the person legally entitled thereto, unless it is made to appear that he has lost this right, or that the security, morals, or welfare and interest of the child require another disposition; and that the right of the father should not be disregarded and his child awarded to the custody of one neither the father nor mother (even though a grandparent) save for grave and substantial cause. The rights of nature are not to be lightly overridden on the one hand, nor is the welfare of the child to be disregarded on the other."
The statements by the court in Sloan v. Jones, supra, were made in connection with the court's ruling that the trial court, in a controversy between the mother and the father over custody of their minor child, had erred in awarding custody to the maternal grandmother. There, as here, no attack was made upon the character of the father; but the evidence in the Sloan case did show that for many months the child had lived in the grandmother's home and had been supported by her. Nevertheless, the court held that the trial court erred in overriding the paramount right of the father to custody of the child.
As pointed out in Chapin v. Cummings, supra, "Although inProctor v. Proctor,
While, as between the parents, the court has a very broad discretion — looking always to the best interest of the child — and may award the child to one, to the exclusion of the other, though the latter may not be an unfit person to exercise custody, or has not otherwise lost the right of custody, still the court, in a controversy between parents, should not, ordinarily, award the child to a third party, if one or both of the parents be morally fit and custody has not otherwise been lost in one of the modes provided by law. Moral, natural, and legal ties should not be lightly overridden. Clearly, before the prima facie right of custody is overridden, the facts and circumstances of the case should plainly show that it is for the best interest of the child that its custody be awarded to one not having the legal right of custody. In this case, no facts or circumstances are shown which could lead to the conclusion that the interest and welfare of the child would best be served by awarding custody to the maternal grandmother. On the contrary, the proven facts and circumstances point compellingly to the conclusion that the interest and happiness of the child can best be served by awarding him to the father. Aside from the fact that the father and the maternal grandmother stand upon equal footing as to character and ability to support the child, it appears that the child, a well-mannered boy of about eight years, expressed a desire to remain with his father. He had never lived in the home of his maternal grandmother. Since the separation of his parents, he had spent his entire time between the homes of his parents. So far as the evidence shows, the maternal grandmother had never spent anything for his support, and was not called upon *364 to do so. No sufficient fact or circumstance appears which affords a sufficient reason to override the paramount right of custody of the father, and upon which a finding might be predicated that the interest, welfare, and happiness of this child can best be served by taking him from the care and protection of his father and sending him to the home of his maternal grandmother in St. Louis, Missouri.
We consider another point insisted upon by counsel for the plaintiffs in error. It is urged that the father had lost his right of custody by a failure to furnish necessaries for the child. This contention is based upon the fact that the father failed to pay the alimony judgment and a medical bill.
The evidence disclosed that the father failed to pay the $7 per week awarded for the support of the child and that he failed to pay a medical bill. On the other hand, the undisputed evidence showed that the father supported the child during the summer months of each year, furnished him with clothing, medical and dental services, and other necessaries; that no demand had been made upon the father to pay the alimony judgment until shortly before the institution of the present action; that for several months immediately preceding the institution of this action, the child had been supported exclusively by his father while residing in his father's home. It does not appear that the father was ever informed of the child's need for necessaries, except with reference to the unpaid medical bill.
In Brown v. Newsome,
We make no attempt to justify the father's dereliction of duty in failing to pay the alimony decreed; but under the peculiar facts of this case, we think this fact alone, coupled with his failure to pay one medical bill, insufficient to authorize a holding that he had lost his right of custody by a failure to furnish his child with necessaries. The evidence fails to meet the requirements of the rule laid down in Brown v. Newsome, supra. See, in this connection, Sloan v. Jones, supra;Broxton v. Fairfax,
From what has been ruled above, it follows that the trial court abused its discretion in awarding custody to the maternal grandmother. The judgment of the superior court on certiorari, in so far as it reversed the judgment of the trial court and remanded the case for a further hearing, is affirmed.
Judgment affirmed. All the Justices concur.