Opinion
16443.
JANUARY 11, 1949.
Habeas corpus. Before Judge Lilly. Lowndes Superior Court. August 11, 1948.
Robert Y. Dewar, for plaintiff.
Franklin, Eberhardt Barham, for defendants.
The judge, upon hearing a writ of habeas corpus for the detention of a minor child, is vested with a discretion in determining to whom its custody shall be given. However, such discretion should be governed by the rules of law, and be exercised in favor of the party having the legal right, unless the evidence shows that the interest and welfare of the child justify the judge in awarding its custody to another. In the circumstances of the present case, the trial judge did not abuse the discretion vested in him by awarding the minor child involved to third parties, since it clearly appears from the evidence that the interest and welfare of the child required such a disposition.
No. 16443. JANUARY 11, 1949.
Mrs. Camp, formerly Mrs. Rowan, brought habeas corpus in the Superior Court of Lowndes County to recover possession and control of her five-year-old daughter from Lawrence Bookman and his wife, Mrs. Miriam Zant Bookman, alleging that their possession of her child is illegal. The respondents answered, claiming that their possession was lawful, and fully set up the facts under which they claimed a right to have and retain custody and control of the child. The record shows that the plaintiff, at the age of fourteen, married Sineath D. Rowan in South Carolina on September 9, 1942. They afterwards moved to Valdosta, Georgia, and then to Miami, Florida. The child in question was born to them June 6, 1943. They separated soon after the birth of their child. The mother with her child went to the home of her father in North Carolina, and remained there until she returned to Florida to contest a divorce suit which her husband had filed on the ground of desertion. That suit was dismissed when this plaintiff filed her answer. On January 23, 1945, Rowan was indicted in the Circuit Court of Hamilton County, Florida, for unlawfully withholding means of support from his minor child. To that charge he pleaded guilty, but the imposition of sentence was deferred upon condition that he pay to this plaintiff $10 per week for the support of his child. The plaintiff then brought divorce proceedings against her husband, and on June 6, 1945, a court of competent jurisdiction in Florida granted a total divorce to the parties, awarded custody and control of their child to this plaintiff, and required Rowan to pay $10 per week for the support of his child. Shortly thereafter Rowan married again and returned to Georgia. Later the plaintiff came back to Georgia, placed her child in the possession of Rowan and his second wife, relieved him from paying the weekly amounts required by the Florida decree, and during January, 1946, married Sam Camp, who at that time lived on a farm in Colquitt County, Georgia. Rowan and his second wife and Rowan's parents kept possession of the child until Rowan gave her to the respondents on May 22, 1947, and consented for them to adopt her. The plaintiff did not consent to this disposition of her child, and knew nothing about it until several months later. As soon as she learned that the respondents had filed proceedings to adopt her child, she interposed objections thereto, and the adoption petition was then voluntarily dismissed. This habeas corpus proceeding was then brought.
On the trial of this case the evidence submitted by the parties was voluminous. In fact, the hearing lasted three days. In many material respects the plaintiff's evidence was in sharp conflict with that of the defendants. But in so far as it is material here, the plaintiff's evidence shows that she was awarded custody and control of the child in question when she and the child's father were divorced in Florida. The child was then two years old. By the decree in the plaintiff's suit for divorce the father (Rowan) was required to pay $10 per week for the support of his child. She brought her child to this State during the latter part of 1945, and arranged with her former husband and his second wife to keep it temporarily for her. She agreed to relieve him from paying the weekly amount due under the Florida decree while he kept the child. She did not visit the child often because her presence at her former husband's home was embarrassing to all concerned. She married Sam Camp, a farmer, during January, 1946, and they now live on her father-in-law's farm in Colquitt County. She and her second husband went to see her first husband during March, 1946, and demanded possession of her child. Her former husband then told them that they could have the child as soon as they were in a position to properly provide and care for it. She and her present husband are now amply able to take care of the child and provide for the child's education. They have no children of their own, and the plaintiff has been told by her physician that she will bear no other children. Her present husband loves children, is anxious for her to regain possession of her child, and is entirely willing to help her rear and educate it. She did not consent for the respondents to take possession of her child or for her former husband to dispose of it in any way. As soon as she found out that the respondents had filed proceedings to adopt her child, she interposed objections thereto, and the proceedings were voluntarily dismissed. The plaintiff introduced several witnesses, who testified that they had known her all of her life; that she was a person of good character, industrious, very attentive to her child while she had possession of it; and that she and her present husband are suitable persons to rear the child, and are amply able to do so. The plaintiff's evidence made no attack upon the character of the respondents or their ability to care for and educate the child in question.
The defendants' evidence, in substance, shows that the plaintiff brought her child to the home of her former husband and gave it to him unconditionally. At the same time she relieved him from the payment of any further amounts for the support of the child, and of this agreement she notified the proper court officials in Florida. She visited the child a few times immediately after it was given back to her former husband, but after March, 1946, made no further inquiries about it or efforts to see it. There was never any agreement to return the child to her. The child's father and its paternal grandparents kept possession of it until May 22, 1947, when the father gave it to the respondents and consented in writing for them to adopt it. At that time the father represented that he did not know the plaintiff's address or the name of the person she married. When the respondents took the child it was undernourished, without sufficient clothing, and was not developing, either physically or mentally; but is now a normal happy child, being well reared by Christian people, and attends kindergarten and Sunday School regularly. The respondents have by insurance provided for its education. Different witnesses testified to facts and circumstances which would fully authorize an inference that the plaintiff is not a person of good character. There was also evidence that the plaintiff's present husband, since their marriage, had been convicted of an assault with intent to murder in the State of Florida and sentenced to serve a term of five years in the penitentiary, but after serving about seven months was released and is now serving the remainder of his sentence on probation; that he was present at, and took some part in, a roadhouse brawl when one of his companions was killed; that he was recently riding in the car with a named person who had two automobile accidents during the same night; that he has been frequently arrested for public drunkenness; and that he and his father's family have the reputation of being unlawfully engaged in the liquor business. Several different witnesses, neighbors, testified: that the respondents are people of excellent character; that they are financially able to properly rear and educate the child in question, and are doing so; and that the child is now normal and happy, and has noticeably improved, physically and mentally, since taken by the respondents. There was evidence that the child was not properly cared for while in the possession of the mother, and later while in the possession of the father and his second wife.
From the evidence submitted the judge found that the parents of the child in question had lost or surrendered their parental rights, either through abandonment or by contract; that the respondents were in lawful possession of the child; and that the child's welfare would be best served by permitting the respondents to retain custody and control. Upon these findings of fact a judgment was rendered awarding custody and control of the child to the respondents. The plaintiff excepted and brought the case to this court for review.
The present case involves a contest between a mother and third parties over the custody of a minor child. The father admits that he relinquished all of his parental rights to the third parties. It is conceded by counsel for all of the parties, and abundantly shown by the evidence, that the father is not a proper person to have custody of the child. Serious charges are made against the mother's character and her ability to properly care for the child, but upon this issue the evidence is conflicting. No attack is made upon the character, ability, or fitness of the respondents. It is shown without question that they took the child by gift from her father; that they have given her a good home; that they are people of excellent character; and that they are amply able financially to properly rear and educate her, and are willing and anxious to do so. The trial judge found from the evidence that the mother had lost her parental rights, and that the interest and welfare of the child would be best served by awarding her custody to the respondents. His judgment making such a disposition of the child in question is here for review, and with a sense of unusually deep responsibility we approach a consideration of the case. Our decision, as we well know, will affect vitally the life of an innocent, helpless human being In fact, who knows but that it may determine the destiny of the little girl involved? As parens patriae we are concerned primarily with the welfare of the unfortunate child concerning whom this legal battle is being waged. The best that may be done for her under the circumstances will be far less than she is entitled to. In the view we have of the case, it is not at all necessary to enter into any extended effort to determine from the great mass of conflicting evidence in this record which of the parents last had a legal right to her custody and control. It is enough to say that by the Florida decree respecting the child the mother for the time being was awarded custody of her to the exclusion of the father, and that the trial judge was fully authorized to find from the evidence that she later voluntarily returned the child to the custody and control of the father, who subsequently gave her to the respondents. We shall, therefore, deal with the child as having the status of one whose parents are separated, divorced from each other, and both married again.
"In cases of separation of the parents, or of the death of one and the subsequent marriage of the survivor, the court, upon writ of habeas corpus, may exercise a discretion as to the possession of the child, looking solely to his interest and welfare." Code, § 74-106. "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." § 50-121. While the judge, upon a hearing of a writ of habeas corpus for the detention of a minor child, is vested with a discretion in determining to whom the custody shall be given, such discretion is not, however, free or arbitrary, but is to be governed by the rules of law, and should be exercised in favor of the party having the legal right, unless the evidence shows that the interest and welfare of the child justifies the judge in overriding the rights of the person holding the legal claim. Miller v. Wallace, 76 Ga. 479 (2 Am. St. R. 48); Williams v. Crosby, 118 Ga. 298 ( 45 S.E. 282); Butts v. Griffith, 189 Ga. 296 ( 5 S.E.2d 907); Shope v. Singleton, 196 Ga. 506 ( 27 S.E.2d 26); Harter v. Davis, 199 Ga. 503 ( 34 S.E.2d 657); Lucas v. Smith, 201 Ga. 834 ( 41 S.E.2d 527). In Williams v. Crosby, supra, the court said: "In a contest between two parties, both of whom are fit and proper persons, the one having the legal right should prevail. If both are proper parties, but neither has a legal right, the one having the strongest moral claim should prevail. But in every case, regardless of the parties, the welfare of the child is the controlling and important fact. This is not intended to nullify the laws of nature; for in most instances it will be found that the legal right of the parent and the interest of the child are the same. But if through misconduct or other circumstances it appears that the case is exceptional, and the welfare of the child requires that it should be separated even from its parents the parens patriae must protect the helpless and the innocent. They are the wards of the court, the hope of the state and the seed corn of the future."
As we have previously pointed out, the father disclaims any right to the custody of his child. Clearly by his contract with the respondents he relinquished to them all of his parental authority. But what is the mother's status? We have recently held in Hill v. Rivers, 200 Ga. 354 ( 37 S.E.2d 386), that, if either parent is a proper and suitable person and has not surrendered his or her parental right of custody, it is an abuse of discretion to award a minor child to third parties over the claim of such a parent. In the present case respecting the mother's claim, there being evidence tending to show her abandonment of the child in question, that she is personally not a suitable person to have possession of the child, and that her present husband's home is not a proper place for the child, the judge was fully authorized to find, as he did, that the interest and welfare of the child would be best served and promoted by awarding her custody and control to the respondents, who admittedly are people of unquestionable character, able and willing to properly rear and educate her, and who for a considerable time prior to the institution of this proceeding had been doing so. In these circumstances, no abuse of discretion is shown, and the judgment complained of is not erroneous for any reason assigned.
Judgment affirmed. All the Justices concur. Duckworth, C. J., and Atkinson, P. J., concur in the judgment only.