This is a child custody habeas corpus proceeding in which the natural father lost custody of his daughter to a third party. We deny the motion of the third party to dismiss the appeal. We reverse the order of the trial court adjudicating the natural father unfit and awarding custody of the minor to the third party.
Joe Wright, one of the two appellants, was divorced from Dean C. Wright, and custody of their daughter, Joli Deanne Wright, who had been born on March 12,1972, was awarded to Dean. Thereafter, Joe married Judy B. Wright, the other appellant, and Joe’s former wife, Dean, married Larry Hanson, the appellee.
After Job’s mother died, Job came to live with her father. Job’s father thereafter permitted her to visit with her stepfather, Larry, but her stepfather refused to return her to her father, who then filed this child custody habeas corpus proceeding in which he asserted that he automatically had prima facie right to Job’s custody as her surviving parent upon the death of Job’s mother, Dean, who had had custody of Job under the divorce proceedings. The trial court found Job’s father unfit for three reasons hereinafter set forth and awarded custody to her stepfather, Larry. Job’s father, Joe, and his present wife, Judy, appeal.
1. Larry has moved to dismiss the appeal on the ground that Joe and Judy failed to file a direct appeal within thirty days from entry of judgment. Code Ann. § 6-803 (a). However, Joe and Judy filed an application to appeal in accordance with the procedures set forth in Code Ann. § 6-701.1, which application has been granted by this court.
Larry contends we have held that the procedures required by Code Ann. § 6-701.1 “are not applicable to appeals in habeas corpus actions brought under Code Ann. § 50-101 (b).”
Bryant v. Wigley,
*524 Joe and Judy respond by contending that the principle announced in Bryant v. Wigley, supra, applies only when the custodial parent bringing habeas prevails and not, as in the present case, when the custodial parent loses and custody is awarded to the third party. Their argument is founded on the assertion that although, as in Bryant v. Wigley, supra, an order returning the minor to the custodial parent is not an order “awarding ... child custody” within the meaning of Code Ann. § 6-701.1 (a) (2), an order awarding the minor to the third party instead of to the parent who brought the habeas proceedings is an order “awarding ... child custody” within the meaning of that section.
In
Etzion v. Evans,
We now hold that an application for appeal in accordance with the procedures set forth in Code Ann. § 6-701.1 is not necessary in child custody habeas corpus proceedings brought by the custodial parent whether the custodial parent prevails or loses in the trial court. We are of the opinion that the General Assembly did not intend to include child custody habeas corpus actions brought by the custodial parent within the classes of cases enumerated in Code Ann. § 6-701.1. We further hold that when the custodial parent in a child custody habeas corpus proceeding unnecessarily files an application for appeal in accordance with Code Ann. § 6-701.1, and this court grants the application, and a notice of appeal then is timely filed, this court has jurisdiction of the appeal even though no notice of appeal was filed in accordance with Code Ann. § 6-803 (a) within thirty days from entry of judgment in the trial court. Etzion v. Evans, supra.
2. Joli’s father, Joe, automatically had a prima facie right to Joli’s custody upon the death of her mother, Dean, who was the custodial parent under the divorce decree.
Land v. Wrobel,
The trial court made three factual findings regarding the unfitness of Job’s father. First, that he had been married five times. Second, that loaded pistols were displayed in Job’s presence on two occasions while Job was residing with her father during the summer of 1980. Third, that Job’s father did not provide regular child support payments from the time of his divorce from Job’s mother.
Assuming, arguendo, that Joe’s multiple marriages might be some evidence of past unfitness, they are not reasonable evidence of present unfitness; hence, they are not of themselves grounds for removing Job from Joe’s custody.
Gazaway v. Brackett,
supra;
White v. Bryan,
supra;
Shaddrix v. Womack,
The record is devoid of evidence that on two occasions during the summer of 1980 loaded pistols were displayed in Job’s presence. Joe admitted that his sixteen-year-old brother once got angry with him at his parent’s home about a motorcycle and that his brother got an old rusty pellet gun from a garage. There was no evidence it was loaded or that Job was aware that Joe’s younger brother had it in his hands during his argument with Joe. To the contrary, the evidence was that Job was not present but was riding a motorcycle in a nearby field. The evidence indicated she was disturbed by the argument, not by the presence of the air gun. There was absolutely no evidence regarding another incident involving a pistol, loaded or otherwise.
Finally, the court found that Joe did not provide regular child support payments from the time of his divorce from Job’s mother. The divorce decree did not require Joe to make periodic child support payments. After the death of Job’s mother, Joe provided Job’s entire support up until the time that her stepfather, Larry, declined to return her to Joe’s custody. The record is devoid of evidence that Joe ever declined or refused to provide support for Job when needed or requested. Accordingly, this third and last finding of the trial court regarding Joe’s unfitness is not supported by reasonable evidence. Gazaway v. Brackett, supra; White v. Bryan, supra; Shaddrix v. Womack, supra.
Judgment reversed.