Opinion
17345.
FEBRUARY 14, 1951.
Habeas corpus. Before Judge Fort. Chattahoochee Superior Court. October 28, 1950.
Vincent P. McCauley and Charles A. Hughey, for plaintiff.
Wohlwender Land, for defendants.
Under the pleadings and evidence in this habeas corpus proceeding, the trial judge did not abuse his discretion in awarding custody of the child to the foster parents. Code, §§ 50-121, 74-108 (3); Morris v. Grant, 196 Ga. 692 ( 27 S.E.2d 295).
Judgment affirmed. All the Justices concur.
No. 17345. FEBRUARY 14, 1951.
Mrs. Jenny Gray Cons instituted in Chattahoochee Superior Court, against Lewis Edward Wipert and his wife Mrs. Frances Wipert, a habeas corpus proceeding to recover the custody of a minor child. On the trial there was evidence for the petitioner to the following effect: In 1949, the petitioner, then an unmarried female, seventeen years of age, became pregnant. She was living with her parents in Los Angeles, California. In July, 1949, she revealed her condition to her mother and named Ralph Cons, who was eighteen years of age and without financial means, as the child's father. Her mother told the petitioner that she could not have the baby at home, as her father was very ill and such a shock might kill him, and that she could not bring the baby back to Los Angeles after it arrived. Her mother made arrangement for the petitioner to go to the home of her brother in Columbus, Georgia, and wrote him that his sister was coming. On September 26, 1949, the petitioner arrived in Columbus. She was advised at the Welfare Department that they could place the baby in a home for three months or until it was possible to see if she could take care of it or would have to give it up. The petitioner's sister-in-law said that she knew a couple who would take the baby, and told the petitioner not to go back to the Welfare Department. The petitioner registered at the hospital under the name of Mrs. Ralph Cons, but on advice of her sister-in-law, she changed the name to Frances Wipert. A baby daughter, Karen Jean Wipert, was born to the petitioner on February 15, 1950. The next day her sister-in-law took the baby, saying that she was going to give it to the couple for adoption. About the end of April, the petitioner returned to California and later married Ralph Cons, the father of her baby. She never wanted to get rid of her baby, and only let it go because she could not support it. She and her husband now have a good home and they want the baby very much. Her husband makes $70 a week.
There was evidence for the respondents to the effect: The petitioner's brother and sister-in-law often discussed with her what would be done with the baby. The petitioner said that she did not want it and wished she could find someone to adopt it. Her sister-in-law begged the petitioner to keep the child, as she might regret it later on, but she refused. The petitioner's brother and sister-in-law then talked with the respondents (Mr. and Mrs. Wipert), and they agreed to take the baby, but they did not want the petitioner to know who had it. The respondents let the petitioner use Mrs. Wipert's name when she had the baby. The petitioner voluntarily gave the baby to her sister-in-law with the request that she get rid of it by giving it to someone to adopt, and she made no inquiry concerning the baby's welfare from that time until shortly before institution of the habeas corpus proceeding. The respondents are very much attached to the baby, who is now eight months old, and they are in a position to take care of it. They are of good character and have given the baby a good home from the day it was born.
There was documentary evidence to the effect: On October 2, 1950, counsel for the petitioner wrote a letter to Mr. Wipert demanding custody of the child. On the same day Mr. and Mrs. Wipert (the respondents in the present case) filed a petition for adoption of the child in the Superior Court of Chattahoochee County and on October 5 the trial judge granted them temporary custody of the child until December 23, the order stating that on the latter date the application for adoption would be further considered and acted upon as by statute provided in such cases.
The petition for habeas corpus was filed on October 25, 1950. At the conclusion of the evidence in that case, the trial judge awarded the custody of the child to the respondents. The petitioner excepted to this judgment on the grounds that it was contrary to law, contrary to evidence, contrary to the principles of equity and justice, and contrary to the public policy of the State as declared in Code § 74-401.