Opinion
17299.
JANUARY 8, 1951.
Habeas corpus. Before Judge Edwards. Valdosta City Court. August 25, 1950.
Franklin, Eberhardt Barham, for plaintiff in error.
H. B. Edwards Jr., and Hamilton Burch, contra.
Where there are issues of fact in a habeas corpus case involving the custody of minor children, it is erroneous for the trial judge to base his judgment (in part) upon documents which were excluded and not a part of the record in the case.
No. 17299. JANUARY 8, 1951.
Lonnie Sharpe brought a petition for habeas corpus in the City Court of Valdosta against David Scott Everett, seeking the custody of two minor children, James Scott Everett and Grace Everett. The two minor children are the children of the defendant and the plaintiff's daughter, who died in 1942. The petition alleged that the defendant totally and absolutely abandoned the children, by leaving them with Albert Daniels and his wife at Moncks Corner, South Carolina, for a period of time from 1944 until July 14, 1950. After an investigation, initiated by the plaintiff, by the South Carolina Department of Public Welfare, Albert Daniels returned the children to their father, the defendant. The plaintiff contended that he is entitled to the custody and control of the children, and that the defendant is illegally restraining them from his possession.
The writ of habeas corpus was issued, and the children were placed in the temporary custody of the plaintiff. The defendant, in his answer, denied that he had abandoned the children. He stated that, at the time of his wife's death, the children were very young, and it was necessary for him to place them in a home where they could be cared for until he was able to afford them a home himself. He placed them with Albert and Lula Daniels, who agreed to keep them for him until such time as he could arrange to make a home for them himself. From time to time he sent money to provide for the welfare and comfort of the children, and he kept in touch with them at all times. Since the children have now reached an age where they can, to some extent, take care of themselves, he is now able to provide a home for them. He had the children returned to him, and was providing a home for them when the habeas corpus proceeding was instituted. The defendant contended that, since he is the natural father of the children, as a matter of law he is entitled to their custody and control.
On July 28, 1950, the matter came on for hearing. At the conclusion of the plaintiff's evidence, the bill of exceptions recites: "At this point plaintiff introduced in evidence a copy of a letter from the Lowndes County Department of Public Welfare to Judge George R. Lilly, marked plaintiff's exhibit number 1, enclosing a copy of a report which he said Judge Lilly had mailed to him and marked plaintiff's exhibit number 2. Also a copy of a letter signed by Judge Lilly addressed to Miss Carolyn Folsom and marked plaintiff's exhibit number 3. Each of these was objected to on the grounds that they were not originals and no accounting had been made for the originals, and that anything in either of them would be hearsay and would not be original evidence. The court sustained the objections."
At the conclusion of the hearing, the trial judge "took the matter under advisement until August 25, 1950," when the following judgment was rendered: "Upon a hearing in the above-stated case, it appearing to the court from the evidence in the case, and the court taking into consideration a written report from the Lowndes County Department of Public Welfare, pertaining to these children, which report covered a period of about six years, this report and evidence reveals that the defendant, David Scott Everett, the father of the children, abandoned them about six years ago; the court is now considering only the welfare of the children. It is considered, ordered, and adjudged by the court that the custody and control of said children be and the same is hereby vested in their maternal grandfather, Lonnie Sharpe."
The defendant, plaintiff in error in this court, excepted to this judgment.
The trial judge in every habeas corpus case involving the custody of minor children is vested with a wide discretion. It has been stated many times, however, that this discretion is not 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 of custody, unless the evidence shows that the welfare and interest of the child would justify the judge in overriding the rights of the person holding the legal claim. Shope v. Singleton, 196 Ga. 506 (2) ( 27 S.E.2d 26), and cases cited.
The order of the judge in the present case shows that his judgment was not based solely on the evidence. The judgment states that he has taken into consideration a written report from the Lowndes County Department of Public Welfare, and that the report and the evidence reveal that the father of the minor children abandoned them six years before the date of the hearing. This report was not admitted in evidence, and is not included in the record of the case.
In many cases the custody of minor children presents a complex problem for the conscientious trial judge. Such a problem is involved in the present case, where the home offered on the one hand is with an aged grandfather, who must be assisted by his sons in providing for his own necessities, and the other home is with the father, who does not own a home, but rents rooms, and must depend on his landlady to care for the children. However difficult the task of the judge in such a case, the law requires that he make his decision on the evidence, and does not allow him to make a private investigation to aid him in his decision. Kilgore v. Tiller, 194 Ga. 527 ( 22 S.E.2d 150).
Where an award of custody is based in part upon documents which were not admitted in evidence, and not a part of the record, it is impossible for this court to determine whether or not the trial judge abused his discretion in the judgment rendered. Compare Atlantic Birmingham Ry. Co. v. Cordele, 125 Ga. 373 (4), 375 ( 54 S.E. 155); Thompson v. State, 138 Ga. 267, 273 ( 75 S.E. 357); Alford v. Alford, 190 Ga. 562, 654 ( 9 S.E.2d 895); Kilgore v. Tiller, supra.
Judgment reversed. All the Justices concur.