Eddie Hendon and • Wanda Louise Hendon filed suit against Samuel Ledell Martin and Linda Deloris Martin seeking custody of Karen Darlene Martin, the two-year old daughter of the defendants. The record shows that the pаrents were divorced on October 5, 1967, by decree of Fulton County Superior Court which decree аlso awarded temporary custody of said Karen Darlene Martin to her father Samuel Ledell Martin and temporary custody of six-year old Sandra Lynn Martin to her mother Linda Deloris Martin. The order provided: . . that the court retain jurisdiction as to the permanent custody of said children . . . that the juvenile сourt of this county make a thorough investigation into the custody matter and return their report to this court for final determination of the permanent custody.” The record further shows that in December 1967, during a subsеquent term of court, an order was entered in said divorce action modifying the award of tempоrary custody of Karen Darlene Martin and giving such temporary custody to Mr. and Mrs. Edward Hendon. The order directed the Sheriff of Fulton County to search the homes of the parents and return the child to the Hendоns. This was done. The petitioners allege that they have had custody of said child the greater portion of her life, that on December 28, 1967, the father took said child from their home and placed hеr in her mother’s home after which they obtained the above temporary custody order, that the dеfendants are not fit and proper parents to have such custody, that the child has no suitable home except with them, and that they are fit and proper persons to have permanent сustody of said child.
The defendant mother answered the petition and filed a cross claim seeking сustody of the child on the basis of a change in condition occurring since its award to the father in thе divorce action; that the order entered after the final decree awarding temporаry custody to the plaintiffs herein be declared void; that the father had relinquished his custody of . said child tо her by placing the child in her home prior to the amended order of the court in December 1967, and that this relinquishment constitutes a change of conditions entitling her to legal custody of the child; that the divоrce *222 decree giving her the custody of one of the children adjudicated her fitness to have the other child; that she has a suitable home for the child, is employed and is a fit and proper pеrson to have her' custody; and that the father has remarried and no longer desires custody of the сhild.
On January 4, 1968, the trial court dismissed the petition, answer and cross claim and the mother appeals from that judgment. Held:
1. “Where children are involved in the granting of a divorce decree, it is the duty of the trial judgе to award their custody. Where by decree an award is made asserting it to be ‘for the present,’ with a further provision that ‘this court retains jurisdiction for the purpose of determining permanent custody of the children,’ such will not divest the award of its finality, nor retain exclusive jurisdiction over their custody. . .”
Burton v. Furcron,
2. “After the adjournment of the term during which it was rendered, there is no procedure provided under the law of this State by which to amend or modify a judgment fixing the custody of a minor child. The remedy is by a new petition based upon sufficient legal grounds and instituting a new case fоr a redetermination of the rights of custody; not by petition to modify or amend the original decreе.
Perry v. Perry
[
3. The appellant, defendant in the lower court, enumerаtes as error the dismissal of the plaintiffs’ petition. Since such *223 ruling did not adversely affect the appellant, she cannot complain of this ruling. The dismissal of the plaintiffs’ petition is therefore affirmed.
4. The cross claim of the mother in this case, however, shows that the father, who was awarded custody оf this child in the divorce decree, had voluntarily relinquished it to her and that this was a sufficient change in cirсumstances to authorize the trial court to award the child to her. She further alleges that she is a fit and proper person to have such child. The father was a party to this proceeding and personally appeared in the trial court. The divorced father’s surrender of the child to its mothеr was such a change in condition as would authorize the court to consider the question of custody of the child.
Askew v. Askew,
It was error for the trial court to dismiss the cross claim of the mother without allowing the introduсtion of evidence in support of her allegation of a change of circumstances affecting the welfare of this child.
Judgment affirmed in part; reversed in part.