Opinion
32859.
ARGUED OCTOBER 13, 1977.
DECIDED OCTOBER 25, 1977.
Habeas corpus; custody of children. DeKalb Superior Court. Before Judge Federal.
Jones, Wilson Tomlinson, John J. Jones, James M. Rudder, Jr., for appellant.
Taylor, Morris Hotz, Walter H. Hotz, for appellee.
This child custody case involves the validity of a 1974 order (entered by consent of the parties), which changed the custody of the two minor children from appellant to appellee for medical reasons. The sole challenge to that order is that it was entered without subject matter jurisdiction.
In Hopkins v. Hopkins, 237 Ga. 845 ( 229 S.E.2d 751) (1976), we held that the superior courts have subject matter jurisdiction in cases involving custody or visitation rights because they are in the nature of habeas corpus, whether labeled habeas corpus or not. The 1974 order resulted from a case involving a change in custody, thus appellant's challenge is without merit. Judgment affirmed. All the Justices concur.
The same parties are involved in this case as in Hopkins v. Hopkins, supra. However, we reject appellee's assertion of res judicata, and decide this case on the basis of stare decisis, since we are in doubt as to whether all of the requirements for res judicata exist.