*1 790 v. et al.

24909. McMILLAN McMILLAN brought Alice McMillan an action Justice. Emma Undercofler, corpus against parents, of a habeas her Mr. & in the nature McMillan, custody 11-year-old of son. to obtain her Mrs. John out of Imme- evidence shows: The son was born wedlock. The to diately petitioner his birth and her son returned after the parents’ they lived for next ten months. her home where the home has lived parents’ then left her and since Petitioner her apart home, from them. she left their she told When “No, mother her replied, she would take the child but mother agreed for her your you.” father would kill She has never parents custody leaving to of her child. their have Since custody. she has asked and refused home for been Petitioner and illegitimate aged years years. has two other children 4 7 gainfully employed by maintains a and has been She home earning years $75 the same business for last six the between per pe- and child and week. have reared the $100 Defendants meager; have how- support contributions to his been titioner’s any her ever, father has asked for assistance. testified he not custody of the The court remanded child to the defendants the petitioner and appeals. the Held: illegitimate to of her child unless possession is A mother entitled provided legitimate by him as law. Code father shall the in case not the evidence this appearing from It 74-203. § the child, petitioner has the as legitimated that the father the parent may parental all control. recognized exercise only custody of child in a habeas parent cannot denied the be Such it shown corpus proceeding against parties third unless is provisions power lost under the of Code parental that was 74-109, Norwood, Bond v. 195 Ga. 383 74-108, 74-110. §§ 289). Courson, 611 (24 contra Perkins v. Ga. See 219 SE2d (three dissenting). (135 388) portions The of Justices SE2d provide: applicable to instant case “This the Code 74-108 § re- Voluntary contract, power shall lost 1. parental be by: . . of the leasing person. to Failure right a third 3. the or his child, necessaries for provide to his father [mother] family.” of his abandonment any voluntary fails to show contract in this case evidence

The right her petitioner released her to son to the by which the attempt any to did not show The defendants defendants. the evidence shows that contrary, contract. the the such On custody to right not her of the defend- petitioner did release

791 custody. was his petitioner’s ants but refused Nor does the provide to necessaries for the child in this result failure case parental power. in loss of . . of “. a failure [M]ere parent provide to support pos for a minor when in child the or custody session the other parent, of other a or grandparent, *2 person, support when no is or requested needed, is not such a provide to such failure necessaries or an abandonment as will to right parental amount a relinquishment custody of the to Conner, (81 and control.” v. 508, Rawdin 210 Ga. 512 SE2d 461); (122 104). Way, (2) Coleman Ga. SE2d v. 217 366 corpus proceeding in a habeas the between "Accordingly, mother of an illegitimate parents mother, child and the of the where there was no the parental evidence that mother had lost it control, judge was error for custody the trial to award the of child parents.” the to mother’s Skinner, the v. Skinner (51 420). 635 204 Ga. SE2d

Judgment Mobley Grice, reversed. theAll Justices concur. and

JJ., specially. concur 12, 1968. 21, Submitted 1968 Decided November November McDonald, appellant. for J. W.

George appellees. for Jordan, concurring Justice, specially. agree judg- with the Grice, I not ment, opinion. but with all that is stated in the do not I agree parent the statement that a with cus- “cannot be denied corpus proceeding child a habeas tody against of the in third parties parental power it unless is shown that was lost under the of provisions 74-108, 74-109, parent Code may 74-110.” A §§ rights parental by also his satisfactory lose where clear and proof person that he is an unfit it is shown to have custody. See Courson, (135 388) (three Perkins v. 219 Ga. SE2d 611 Justices comprehensive dissenting), for a review of the cases on this (148 Peck v. subject; Shierling, and 222 Ga. 491) 60 SE2d dissenting). (three Justices present parent case it was not shown

In the that the had lost power parental her under the above section Code or that she concur custody. Therefore, judgment. was unfit for in I the am that Mobley authorized to state Justice joins I Mr. in special this concurrence.