129 Ga. 275 | Ga. | 1907
(After stating the facts.)
Prima facie the right of control and custody of a child until majority remains in- the father. Civil Code, §2502. And in order to divest him of this right upon the ground of unfitness for the trust, proof brought to show the alleged unfitness should be clear and convincing. “‘A clear and strong case’ must be made to sustain an objection to the father’s right. Commonwealth v. Briggs, 16 Pickering, 205. This was determined in a contest on habeas corpus between the mother and father who had separated. The discretion to be exercised by; the courts in such contests is not arbitrary. The rights of the father on the one hand, and the permanent interest and welfare of the infant on the other, are both to be regarded, but the right of the father is paramount, and should not be disregarded except for grave cause. The breaking of the tie that binds them to each other can never be justified without the most solid and substantial reasons, established by plain proof. In any form of proceeding, the sundering of such ties should always be approached by courts "with great caution and with a deep sense of responsibility.’” Miller v. Wallace, 76 Ga. 479 (2 Am. St. R. 48). And elsewhere in the opinion the learned Justice discusses, defines, and points out the limitations of the rules of discretion as applicable to habeas-corpus cases. That opinion we commend as containing sound and wholesome
It is unnecessary, as it would not be helpful to any one, to set forth, even in the most compact form, a státement of the facts-in the case. It is enough to say that there were many facts testified to by witnesses, which, taken collectively and considered together with all the deductions that might be legitimately drawn therefrom, compel the conclusion that the court below can not beheld to have clearly transgressed the limits of his discretionary power, with the exercise of which he is charged by the law, -in find" ing that the custody of his infant son .should be denied to this. applicant. It might be well urged by the plaintiff in error, that, even if the evidence authorized the conclusion that the plaintiff’s conduct was On a former occasion such as to indicate his unfitness to have the custody and care of his son, there is the testimony of many witnesses to show that for several months prior to the institution of these proceedings he had lived an exemplary life and that his conduct had been above reproach. But however strongly this might appeal to us if we were the trial court, we must still recognize the fact that all of this was addressed to the sound discretion of another tribunal, which, under evidence that authorized it, having found that the plaintiff by his conduct had divested himself
In holding that the judge did not abuse his discretion, it is not to be understood that we adjudicate that the father has forfeited for all time his right to the custody and control of his child. If in the future it should appear that the good conduct of the father, which had only continued a limited time when the trial took place, has continued for such a length of time that it would be reasonable to assume that the errors o.f the past would not probably again occur, or if there is any other change in the circumstances which shows with reasonable certainty that the welfare of the child will be safeguarded under the father’s custody, the judgment now rendered will not prevent the father from making an application for the custody of the child.
It was strongly urged in argument before us that “in every case, regardless of the character of the parties, the welfare of the child is the controlling and important fact.” Having placed our decision, affirming the judgment, upon the ground that no abuse of discretion by the court below is shown, we think it unnecessary to discuss the doctrine just stated. We are content with saying that the doctrine as stated above requires important qualifications before becoming acceptable. Certainly where the father is one of the parties to such a case, before the principle just stated becomes active, the father’s prima facie right to the possession and control of the child should be shown to have been forfeited or at least very radically impaired.
Judgment affirmed.