KILGORE v. TILLER et al.

Supreme Court of Georgia1942-09-22No. No. 14265

194 Ga. 527

Summary · law.co

Holding. The trial court's judgment awarding custody to the paternal grandparents was reversed because the judge improperly relied on evidence gathered through private investigation and testimony from unknown witnesses, depriving the mother of the opportunity to cross-examine witnesses and rebut their testimony in violation of established procedure.

Nellie Kilgore sought custody of her illegitimate child, Wayne Tiller, through habeas corpus proceedings against the paternal grandparents. Under state law, an unmarried mother has the legal right to custody of her illegitimate child unless the father legitimates the child. The biological father testified that he had never married the mother, had no legal interest in the child, and was not seeking custody. The trial judge, after the close of evidence, conducted his own private investigation, interviewed witnesses whose identities were not disclosed to the mother's attorney, and rendered a decision awarding custody to the paternal grandparents without allowing the mother to cross-examine these witnesses or rebut their testimony.

The appellate court held that while judges have discretion in custody matters, any such discretion must be guided by the child's welfare as the paramount concern and must favor the parent with the legal right to custody absent evidence that the parent is unfit. The court found that the trial judge violated fundamental procedural rights by basing his decision partly on evidence obtained outside the courtroom through unknown witnesses, without affording the mother the opportunity to confront or respond to that evidence. This procedural violation constituted reversible error.

Summary generated by law.co from the public-domain opinion. The opinion text itself is public domain.

Key issues

Rights of unmarried mothers to custody of illegitimate children
Judicial discretion in custody determinations versus legal presumptions favoring parents
Procedural due process in custody proceedings—right to confront and cross-examine evidence
Paramount consideration of child's welfare in custody awards

Procedural posture

The mother appealed a trial court judgment awarding custody of her illegitimate child to the paternal grandparents, raising procedural objections to the trial judge's investigative methods.

Authorities cited

No cited authorities resolved to law.co cases yet.

Opinion · public domain

majority opinion

Atkinson, Presiding Justice.

Mrs. Nellie J. Kilgore, the mother of an illegitimate child, Wayne Tiller, born September 13, 1939, brought habeas corpus against Mr. and Mrs. J. W. Tiller, the parents of the child’s father, seeking to have the child’s custody awarded to her. The father at the hearing testified that he was the father of the child, that he had never been married to Mrs. Kilgore, that he had no legal interest in the boy, that he had made no claim and was not trying to claim the custody of Wayne Tiller.

The,Code, § 74-203, declares: “The mother of an illegitimate child shall be entitled to the possession of the child, unless the father shall legitimate him as before provided. Being the only recognized parent, she may exercise all the paternal power.” Under this, the prima facie right to the custody was in the mother. That provision, however, must be construed in connection with § 50-121, as follows: “In all writs of habeas corpus sued out on account of the detention of a wife or child, the court, on hearing all the facts, may exercise his discretion as to whom the custody of such wife or child shall be given, and shall have power to give such custody of a child to a third person.” Superimposed, however, is the principle, so often declared, that the welfare and happiness of the child is the paramount consideration in a proceeding for his custody. Lamar v. Harris, 117 Ga. 993 (3) (44 S. E. 866); Hammond v. Murray, 151 Ga. 816 (108 S. E. 203). There was no evidence that the mother had ever surrendered her right to the custody of her child, nor did it demand a finding that she was not a fit and proper person to have his custody. While the judge has a large discretion in a case such as this, that discretion should be exercised in favor of the party having the legal right, unless the interest and welfare’ of the child justifies an award to another. Monk v. McDaniel, 116 Ga. 108 (4) (42 S. E. 360); Butts v. Griffith, 189 Ga. 296 (5 S. E. 2d, 907); Fowler v. Fowler, 190 Ga. 453 (9 S. E. 2d, 760).

An issue of fact was raised by the petition and answer. The result of that issue depended on the proofs submitted. The bill of exceptions contains the following: “After the evidence had closed and argument of counsel, his Honor Judge Arthur S. Oldham held up his decision, stating he wanted some further time to do some investigating of his own. This proceeding on the part of the trial judge was not done with the consent of plaintiff in error. The trial judge thereafter had an investigation made, and had witnesses interviewed, the names and number of same being unknown to plaintiff in error, without the right of plaintiff in error or her attorney being given an opportunity to cross-examine said witnesses, and without furnishing to plaintiff in error or her attorney the names of witnesses thus furnishing testimony; that after hearing said evidence and without giving the plaintiff an opportunity to rebut same, on May 27, 1942, the Honorable Arthur S. Oldham rendered his decision which had been reserved to that date, in which decision he ordered and adjudged that the custody of the minor child, Wayne Tiller, bo awarded to defendants in error, at the same time placing the costs upon plaintiff in error. To this decision the plaintiff in error excepted and now excepts and assigns as error, the same being contrary to law; that said verdict and judgment was illegally rendered, and based upon evidence considered by the court which was not a part of the record in said case, and with no opportunity for plaintiff in error to even know witnesses furnishing evidence, much less an opportunity to examine said witnesses or rebut their testimony.”

A fair interpretation of the above statement is that the judges decision was not based alone on the testimony delivered on oath before him at a public trial, with both parties and their counsel present, but in part as the result of information obtained by him subsequently to the hearing, and on evidence furnished to him by unknown persons. In this he erred. However commendable the purpose of the judge in thus seeking all the 1 ight he could before reaching his conclusion, the method pursued by him was a violation of the law, from which injury to the losing party will be presumed. Atlantic & Birmingham Railway Co. v. Cordele, 125 Ga. 373 (54 S. E. 155). See also Alford v. Alford, 190 Ga. 562 (9 S. E. 2d, 895). Judgment reversed.

All the Justices concur.