Smith vs. Bragg

Supreme Court of Georgia1882-02

68 Ga. 650

Summary · law.co

Holding. The judgment of the superior court is reversed. The ordinary's discretionary decision to leave the child in the custody of the uncle and aunt was within that court's exclusive authority and was not an abuse of discretion.

A father sought to recover custody of his young son through a habeas corpus petition filed before the ordinary (a lower court). The child had been left with the mother when the parents separated, and after the mother's death, remained with the maternal uncle and aunt (Smith). The father had provided no financial support and made no effort to reclaim the child until the boy was nine years old. The ordinary, exercising discretionary authority granted by statute, allowed the child to remain with the uncle and aunt. The superior court, on certiorari review, reversed this decision and awarded custody to the father.

The court addressed two independent grounds for reversing the superior court's judgment. First, as a matter of law, the habeas corpus court first exercising jurisdiction—in this case, the ordinary—has exclusive discretionary power to determine child custody based on the facts presented. The reviewing court (superior court) lacked authority to substitute its judgment for that of the ordinary or to enter a final judgment disagreeing with the ordinary's factual findings; instead, it should have remanded for a new trial if it disagreed with the facts. Second, examining the merits, the court concluded the ordinary did not abuse its discretion. The child had been raised from infancy by the aunt and uncle with love and proper care, while the father abandoned the child and contributed nothing to his support. The dying mother had entrusted the child to her brother, and her wishes deserved respect over those of a father who played no role in the child's upbringing.

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

Key issues

Whether a reviewing court may substitute its judgment for that of the habeas corpus court of first instance on matters of child custody
Whether a father has a presumptive right to custody of his child independent of the court's discretionary authority
Whether the lower court abused its discretion in awarding custody to the maternal uncle and aunt rather than the biological father

Procedural posture

The case came before the court on certiorari review of the ordinary's habeas corpus decision, which the superior court had reversed and remanded for custody to the father.

Authorities cited

No cited authorities resolved to law.co cases yet.

Opinion · public domain

majority opinion

Jackson, Chief Justice.

Bragg, the defendant in error, and his wife parted. She took the child of the marriage, an infant, with her to her brother’s, Smith’s, the plaintiff in error. The child remained there, with the tacit consent of the father, until the mother’s and afterwards the grandmother’s death; and when it got to be nine years old the father brought habeas corpus for it, against Smith, the uncle, before the ordinary. The ordinary left the child with the uncle. On certiorari, the superior court reversed the ordinary and awarded the child to the father, and this judgment is the error assigned.

It is in proof that the father spent nothing to support the child; that the aunt, Mrs. Smith, raised it from her own breast, and she and her husband loved it as their own; and no complaint is made in regard to its treatment. The ordinary, as a habeas corpus court, exercised his discretion on the facts, and the question is, did he abuse that discretion, if the law vested it in him in such a case — that is, in a case where the father demanded the custody of his own child.

By our law the father is not entitled of right to the custody of his child, but on habeas corpus that custody is within the discretion of “the court, on hearing all the facts.” Code, §4024.

That section, taken from the act of 1845, Cobb, p. 335, is 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 its 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.” Such, too, is the spirit of sections 1733 and 1794.

What court is to have and exercise this power and discretion ? Certainly it is the habeas corpus court first exercising jurisdiction, and not the reviewing court. 34 Ga., 99; 59 Ib., 555. True, those cases are where the primary court was the superior and this the reviewing court; but the principle is the same when the ordinary is the primary and the superior the reviewing court. 60 Ga., 456. There the judgment of the superior court was reversed because that court did not allow the justice’s court discretion on disputed facts, but sustained a certiorari and overruled the magistrate’s judgment. If the magistrate’s discretion on facts involving fifty dollars is controlling, much more is that of the ordinary controlling when sitting as a habeas corpus court and expressly invested with discretionary powers by the statute.

Even if the superior court disagreed with the ordinary on facts, it had no power to pass a final judgment, but should have sent the case back for a new trial on the facts. Code, §4067; 60 Ga., 100; 63 Ib., 331, 743; 65 Ib., 600; 58 Ib., 142; 62 Ib., 345. So that in that view the final judgment of the superior court was wrong.

But the facts, we think, are with the ordinary. Certainly his discretionary powers were not abused. The ^¿mother confided the child on her death bed to her brother and sister, and the only thing which disturbed the peace of her death was the apprehension that her husband might get the control of her child. He had abandoned it to her and her relations with no legal steps to recover the boy until he might be useful to labor, and with no contribution to his infantile support. He had married again, and the voice of the dying mother should have controlled rather than that of the father, who had not helped to raise the boy. It matters not that he said his wife left him without cause. Her voice was still in death, and she could not give her version of that controversy.

The ordinary left the boy with her at whose breast he was nourished, a sucking child, and with him who supported the child and raised him to young boyhood, and to both who loved him as their own children.

It is right that he remain with them.

Judgment reversed.