Opinion
17653.
ARGUED NOVEMBER 14, 1951.
DECIDED JANUARY 16, 1952. REHEARING DENIED JANUARY 29, 1952.
Custody of children. Before Judge Vaughn. DeKalb Superior Court. September 7, 1951.
Rache Bell and Paul L. Lindsay Jr., for plaintiff.
Alton T. Milam, John Ellis and D.C. Ireland, for defendant.
In a controversy between parents over the custody of their minor children, there being an issue of fact as to whether the mother released parental control, the trial judge did not abuse his discretion in awarding custody of the children to their paternal grandparents.
No. 17653. ARGUED NOVEMBER 14, 1951 — DECIDED JANUARY 16, 1952 — REHEARING DENIED JANUARY 29, 1952.
Mrs. Alice Bagley Carnes filed in the Superior Court of DeKalb County, against Victor Eugene Carnes, a petition for divorce and custody of their two minor daughters. Defendant filed an answer, which as amended denied that petitioner was entitled to custody, and averred that on May 27, 1947, he and petitioner in writing relinquished parental control and delivered possession of the children to their paternal grandparents. A divorce was granted, but the court reserved until a later date the matter of custody of the children.
The evidence on the custody hearing developed the following facts: Petitioner married defendant on May 25, 1945, when she was 14 years old. Due to defendant's inability to provide a home, they lived most of the time with his mother and stepfather. Petitioner's health was impaired when at the age of 15 she gave birth to her first child. A year later her second child was born. In June, 1946, or 1947, she and defendant separated and they were divorced on August 21, 1947. Upon defendant's promise to provide a home of their own, she remarried him on August 24, 1948, but he failed to do so, and they separated again in February, 1949. The parties were finally divorced on September 9, 1949. Gloria Jean is 5 years old, and Linda Gale is 4 years old. The children have spent practically their entire lives with defendant's mother and stepfather, who have supported them, treated them as if they were their own children, and have provided a good home for them. The children were left with their paternal grandparents each time the parties separated, because petitioner was destitute, in poor health, and had no place to take them. After the second separation, the children visited petitioner off and on. In December, 1950, she came for them on a Wednesday a few weeks before Christmas, saying that she would return them Saturday night, but she failed to do so. On the following Sunday, the paternal grandfather went to petitioner's home, rang the doorbell, and after calling the children, picked them up and left without asking any questions. Since December, 1950, the children have been with their paternal grandparents. Various witnesses testified that the paternal grandparents were fit and proper persons to have custody of the children. Petitioner married J. H. Caldwell on May 12, 1950. She is now in good health and is in a position to furnish a good home for her children. Defendant also married again on September 30, 1950. He and his present wife live with his mother and stepfather.
The evidence relative to signing adoption papers in May, 1947, was conflicting. Petitioner admitted that she signed the papers, but testified that she understood them to be divorce papers, and did not know that she was releasing the custody of her children. On the other hand, there was testimony for defendant that the adoption papers were read to petitioner and it was explained to her that, if she signed them, she would no longer have parental control of her children.
After hearing evidence the trial judge awarded custody of the children to their paternal grandparents, until further order of the court, with visitation rights to their mother. Petitioner filed a motion to modify and set aside the judgment awarding custody, upon the grounds: (1) the evidence did not disclose that petitioner was an unfit person to have custody of her children, and the award to third parties constituted an abuse of discretion; (2) the evidence disclosed that defendant, on the trial of custody, expressly relinquished any claim he had to the children, and the court was without authority to award the children to third parties in the absence of any evidence that petitioner was unfit to have custody, or had waived such right.
No further evidence was introduced. After considering the evidence adduced at the custody hearing, the court overruled the motion to modify and set aside the award of custody. To this judgment the petitioner excepted.
This is a controversy between parents over the custody of their minor children. The paternal grandparents, who were not parties to the proceeding, but who appeared and testified at the custody hearing, were awarded the custody of the children, to which ruling the mother excepted.
The first question to be determined is, whether or not under the provisions of the Code, § 74-108 (2), the mother lost parental control by consenting to the adoption of the children by a third person. The evidence on the issue as to whether the mother had relinquished parental control of the children, though conflicting, was sufficient to authorize a finding that she voluntarily consented in writing to the adoption of the children by their paternal grandparents. Hence, the primary consideration in awarding custody would be the welfare and happiness of the children, the determination of which rests in the sound discretion of the trial judge. Moody v. Pike, 200 Ga. 243 (2) ( 36 S.E.2d 752).
The uncontradicted evidence shows that the children have spent practically their entire lives with their paternal grandparents, who have treated them as if they were their own children and have provided a good home for them. Also, that for approximately two years prior to the filing of the last suit for divorce the children have been well cared for in the home of their paternal grandparents, and in surroundings thoroughly conducive to their welfare and happiness. The father and the mother remarried after the adoption papers were signed, and lived in the home of the paternal grandparents for about six months, but there is no evidence that the custody of the children was returned to the parents. On the contrary, the mother testified that on both occasions when she was living with the paternal grandparents they had control over her children and her husband.
Accordingly, the award of the children to their paternal grandparents until the further order of the court was not an abuse of discretion, and the judgment of the trial court will not be disturbed. Morris v. Grant, 196 Ga. 692 ( 27 S.E.2d 295); Cons v. Wipert, 207 Ga. 621 ( 63 S.E.2d 370).
Judgment affirmed. All the Justice concur.