Opinion
21708.
SUBMITTED JULY 9, 1962.
DECIDED SEPTEMBER 6, 1962.
Habeas corpus. Muscogee Superior Court. Before Judge Thompson.
Ray, Owens Keil, for plaintiff in error.
Vincent P. McCauley, Marilyn W. Carney, contra.
Since no illegal detention existed in a county of the circuit of the trial judge, he did not err in denying the prayer for the issuance of the writ of habeas corpus.
SUBMITTED JULY 9, 1962 — DECIDED SEPTEMBER 6, 1962.
On March 24, 1962, Martha Pauline Jordan, the mother of three minor children, filed a petition in the Superior Court of Muscogee County against Robert Lee Jordan, the father of the children. It was alleged: The father wilfully deserted the mother, and he, his father, and sister forcibly removed the children from their home in Columbus, Georgia. For stated reasons the father is an unfit person to have the children. The mother is a fit and proper person to have their custody. The prayer was for the issuance of the writ of habeas corpus to require the father to produce the three minor children.
The father in his answer asserted: Because of the apparent irresponsibility of the mother and because of the fact that he is in the military service and subject to military orders, he has had to call upon members of his family to care for the children when they have been abandoned by the mother. With a view to the welfare of the children he consented to the filing of a petition in the Circuit Court of Bay County, Florida, for the adoption of the children by his sister, Lucy Markham, and her husband, Hayes Markham. This adoption petition was filed on March 20, 1962, and the mother was notified of its filing by the clerk of the court. He has neither the possession nor the custody of the children, since they are in the physical possession of the Markhams, and under the protection of the Bay County Circuit Court of Florida.
At the hearing the father testified that: On March 15, 1962, he, with his father and sister, went to Panama City, Florida, and took the children with him. He consented for the adoption of the children by his sister. It is physically impossible for him to produce the children, because of the petition for adoption.
Counsel for the mother introduced in evidence an exemplified copy of an order of the Circuit Court of Bay County, Florida, dated March 5, 1962, entered in an adoption proceeding concerning two of the minor children of the parties, in which the petition was dismissed on the motion of the natural parents. The mother testified that after the order was entered dismissing this adoption proceeding in Florida, she and her husband returned to Columbus with their three children. She described his forcible removal of the children from their home on March 15, 1962. In regard to the pending adoption proceeding in Florida she testified: "I went to Florida in connection with the adoption proceedings and I have also been notified that there is a pending proceeding down there now with respect to all three children and I have been down there in connection with that proceeding too and I engaged an attorney, Mr. Julian Bennett. There is a proceeding in Florida, which I am contesting to the adoption of these children. I have been to Florida since March 20th and engaged this attorney. I gave him the authority to represent me."
The trial judge denied the prayer for the issuance of the writ of habeas corpus, and the exception is to this judgment.
Under the undisputed evidence the children were not in the physical possession of the father at the time of the filing of the mother's petition, but were in the possession of his sister and her husband in Florida. It has been held that whoever has legal custody and control of a minor child, in legal contemplation also has possession of it. Crowell v. Crowell, 190 Ga. 501 ( 9 S.E.2d 628). In the present case, however, it does not appear that legal custody of the children had been awarded to either parent. There is no contradiction of the testimony of the father that he has consented to the adoption of the children by his sister and her husband, and the father has thus lost his right to parental control. Code § 74-108 (2); Carnes v. Carnes, 208 Ga. 649 ( 68 S.E.2d 579). The mother testified that she had been given notice of pending adoption proceedings involving the children in a court in Florida, and was contesting this proceeding.
"A judge of the superior court sitting in his circuit has no authority to grant a writ of habeas corpus, unless the illegal detention exists in a county of that circuit." Girtman v. Girtman, 191 Ga. 173 (4) ( 11 S.E.2d 782). Since at the time of the filing of the petition for writ of habeas corpus the father did not have actual physical possession of the children, nor possession in legal contemplation by reason of having the legal custody of the children, and the custody of the children was the subject matter of a pending proceeding in the State of Florida, no illegal detention existed in a county of the circuit of the trial judge, and he correctly denied the prayer of the mother for the issuance of the writ of habeas corpus.
Judgment affirmed. All the Justices concur.