Opinion
34310.
ARGUED JANUARY 10, 1979.
DECIDED FEBRUARY 27, 1979. REHEARING DENIED MARCH 6, 1979.
Habeas corpus; custody of child. Floyd Superior Court. Before Judge Royal.
Smith, Shaw, Maddox, Davidson Graham, John M. Graham, III, Groze Murphy, Jr., C. Wade Monk, II, for appellants.
Gammon Anderson, Joseph N. Anderson, Jack Kent, Jr., for appellees.
The Wrights appeal from a denial of their in-term motion to set aside a default judgment entered against them in this child custody habeas corpus case.
Ms. Sanford signed a document wherein she purported to assent to the adoption of her newborn child by the Wrights. Thereafter, she changed her mind and demanded return of the child. The Wrights had employed an attorney to handle the adoption. He did nothing to secure adoption of the child by the Wrights. Ms. Sanford brought a child custody habeas corpus proceeding against the attorney, demanding disclosure of the names of the Wrights and return of the child. The Wrights' attorney failed to file any responsive pleadings, and the trial court ordered disclosure of the Wrights' names. Ms. Sanford thereafter amended her complaint by naming the Wrights as defendants. The Wrights were served with process. Again, no responsive pleadings were filed by the attorney for the Wrights.
The trial court held that the Wrights were in default and granted default judgment, awarding the child to its natural mother, Ms. Sanford, without conducting a hearing and making a decision as to the validity and effect of the document signed by Ms. Sanford.
The Wrights then obtained new counsel who filed an in-term motion to set the judgment aside. The motion was denied by the trial court based upon a holding that default judgment can be entered in a child custody habeas corpus case.
Judgment cannot be taken by default in actions involving the custody of minor children; rather, the allegations of the pleadings shall be established by evidence. Code Ann. § 30-113. See Duncan v. Harden, 234 Ga. 204 ( 214 S.E.2d 890) (1975).
Judgment reversed. All the Justices concur.