Moody v. Pike et al.

Supreme Court of Georgia1946-01-11No. No. 15333

200 Ga. 243

Summary · law.co

Holding. The trial judge's award of custody to the maternal grandmother was not an abuse of discretion and is affirmed, because the child's welfare and happiness—the proper standard after a prior custody judgment—were adequately served in the grandparents' home.

A father sought habeas corpus relief to regain custody of his two-year-old child from his deceased wife's sister. The trial court awarded custody to the sister, finding the father financially unable to support the child and unfit, and concluding he had abandoned parental rights. The father later filed a second habeas corpus petition, claiming his circumstances had improved and the sister was now unsuitable due to her physical and mental condition. The sister conceded her inability to care for the child and requested that custody be awarded to her parents, with whom the child was already living.

The court held that once a trial judge awards custody to another party in the first proceeding, the father loses his prima facie parental right to custody. In any subsequent proceeding, the only consideration becomes the child's welfare and happiness, which rests within the trial judge's discretion. The award may go to any suitable party, including a third person. Here, because the child was thriving in the grandparents' home in favorable conditions, awarding custody to the sister's mother was a proper exercise of discretion focused on the child's best interests.

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

Key issues

Whether a father retains prima facie parental custody rights after an initial adverse habeas corpus judgment
What standard applies in a second habeas corpus custody proceeding following a prior judgment
Whether changed circumstances of the custodial parent justify awarding custody to a third party

Procedural posture

This is an appeal from a trial court judgment in a second habeas corpus proceeding brought by a father to regain custody of his child.

Authorities cited

No cited authorities resolved to law.co cases yet.

Opinion · public domain

majority opinion

Duckworth, Justice.

1. Where habeas-corpus proceedings were brought by the father of a two-year-old child against the sister of his deceased wife, who was alleged to be illegally detaining the child, and the respondent defended on the grounds, (a) that the father was not financially able to care for the child and not a fit and suitable person for its custody, (b) that he had lost his parental control by reason of his abandonment of the child and his failure to provide the necessaries of life for it, and (e) that he had allowed the respondent to take the child to her home upon the death of its mother, with the understanding that he was relinquishing his right to its custody and control, the judgment of the trial judge, unexcepted to, in awarding the child to the respondent was final and conclusive that the respondent was entitled to such custody and control and that the father had been deprived of his prima facie right to such custody and control provided by the Code, § 74-108. Rourke v. O’Neill, 150 Ga. 282 (103 S. E. 428); Bailey v. Warlick, 196 Ga. 642, 648 (27 S. E. 2d, 322).

2. Where, subsequently to the date of the judgment awarding the child to the respondent, a change of condition arises as to the suitability of the respondent to have the custody and control of the child, the father would not be barred by reason of the former judgment from prosecuting a second habeas corpus proceeding to obtain a new award of the child and to seek its custody, but in such a ease he would not be prima facie entitled to its custody under the provisions of the Code, § 74-108, since by the former judgment it had been adjudicated that he had lost his parental control. Hence, the only consideration in making the new award would be the welfare and happiness of the child, the determination of which rests in the sound discretion of the trial judge, and in the exercise of which the award might be made to a third person. Code, § 50-121; Miller v. Wallace, 76 Ga. 479 (2) (2 Am. St. R. 48); Lamar v. Harris, 117 Ga. 993 (44 S. E. 866); Sloan v. Jones, 130 Ga. 836 (62 S. E. 21); Harwell v. Gay, 186 Ga. 80, 85 (4) (196 S. E. 758); Fowler v. Fowler, 190 Ga. 453 (9 S. E. 2d, 760); Durden v. Johnson, 194 Ga. 689 (3) (22 S. E. 2d, 514).

No. 15333.

January 11, 1946.

Stanford Arnold, for plaintiff.

Meyer Goldberg and S. H. Dyer, for defendants.

3. Where the; father brought a second habeas corpus proceeding, alleging a favorable change in his condition and present unsuitability of the respondent for the custody of the child, and the respondent admíttéd that because of her physical and mental condition she had become unable! to properly care for the child, and prayed that it be awarded -to her parents, with whom the child was then living — irrespective of whether or not the evidence was sufficient to authorize a finding that the father was a fit and suitable person to have the custody of the child, it was shown that the child was being well cared for in the home of the respondent’s parents and in surroundings thoroughly conducive to its welfare, happiness, and future education. Accordingly, the award of the child to the respondent’s mother until the further order of the court was not an abuse of discretion, and the judgment of the trial judge will not be disturbed.

Judgment affirmed.

All the Justices concur, except Wyatt, J., disqualified.