Opinion
19392.
SUBMITTED JUNE 12, 1956.
DECIDED JULY 10, 1956.
Habeas corpus. Before Judge Rees. Sumter Superior Court. April 9, 1956.
Hiram K. Undercofler, Smith Undercofler, for plaintiff in error.
Thomas A. Clark, Dykes, Dykes Marshall, contra.
In this habeas corpus proceeding filed April 4, 1956, by the mother and the putative father of a child born out of wedlock on March 18, 1950, but whose parents entered into a ceremonial marriage on July 10, 1953, the legality of which marriage is questioned because of the previous marriage of the mother to another person from whom she testified she had never obtained a divorce, and where the respondent, an aunt who had reared the mother, and with whom the mother was living at the time of the birth of the child, alleged and contends that the applicants had lost parental control of the child because the mother, before her marriage to the father, had made a gift of the child to the respondent, which was accepted at a time when the mother was a minor, but which gift had been ratified by the mother after attaining majority, and that both the mother and the putative father, after their marriage, had lost their parental right to the custody of the child by reason of their failure to provide necessaries for the child, and where the evidence is in sharp conflict upon all these issues of fact — the discretion of the trial judge in awarding the child to the respondent will not be disturbed. Code §§ 74-203, 74-108 (1) and (3); Butts v. Griffith, 189 Ga. 296 ( 5 S.E.2d 907); McLain v. Smith, 207 Ga. 641 ( 63 S.E.2d 663), and cases therein cited.
Judgment affirmed. All the Justices concur.