Dornburg v. McKellar ( 1948 )

In a contest between a parent and a third party over the custody of a child, the first question to be determined is whether or not the parental control of the child has been lost by the parent. Unless such parental control has been lost, the parent has a prima facie right of custody. By the Code, § 74-108, it is provided, among other things, that parental control may be lost by "cruel treatment of the child." In the instant case there was evidence tending to show that the stepfather of the child often came home drunk and administered severe beatings to the child; that on the last occasion he administered such a beating, the mother of the child was also beaten and swore out a warrant for assault and battery against the stepfather; that the mother of the child called her sister to come to her home and get her and the child; that the mother of the child stayed away from her husband about a week, then returned and continued to live with him, and later sought to obtain custody of the child from its uncle, where it had been staying since leaving the home of its stepfather. The child expressed a desire to remain with its uncle. The court was authorized by the evidence to adjudge that the mother, by continuing to live with her husband, the stepfather of the child who while drunk unreasonably beat the child, condoned the cruel treatment by the stepfather; and such cruel treatment was imputable to the mother, who had thereby forfeited her right to parental control of the child. In view of the preceding ruling, and there being evidence which showed the fitness of character of the child's uncle, his ability to provide for the child, and that the child desired to remain with the uncle, the trial judge did not abuse his discretion in denying the petition of the mother and in awarding the child to its uncle. See Turpin v. Brown, 170 Ga. 824 (154 S.E. 356).

Judgment affirmed. All the Justices concur, except Bell, J., absent on account of illness.

No. 16222. JULY 14, 1948. REHEARING DENIED JULY 28, 1948. Mrs. Geneva Dornburg brought a habeas corpus proceeding in Lincoln Superior Court to recover possession and custody of her twelve-year-old son, who was living with the brother of the petitioner. The judge heard evidence for both sides and awarded custody of the minor to the brother, respondent in the instant case, to which judgment the petitioner excepted.

The petitioner testified that the child was illegitimate; that she lived with her mother and brother, the respondent in the instant case, for eight years after the birth of the child, then married her present husband; that she is amply able to care for and educate the child; that she went to the home of her sister, taking the child with her, where she stayed for a week and then sent the child to the home of her brother, the respondent; that she went back to her husband and sent for the child, but the brother refused to give him up, when she brought this proceeding. The husband of the petitioner also testified that he was amply able to take care of the child, denied that he had beat his wife and the child, and also testified that the respondent was not a fit person to rear the child; that the brother was a bootlegger and took the witness to a still where he was allegedly making liquor.

The sister of the petitioner testified that the petitioner came to her home in Greenwood, South Carolina, after telephoning the sister to come for her; that the petitioner told her that her husband had beat her and the child and that she was afraid that her husband would kill her, and that she had sworn out a warrant against her husband; that the petitioner was blue from head to foot and badly bruised, and the child was also bruised, evidence of beating; that the petitioner asked her to take the boy to her brother, the respondent, for safe keeping, and stated she wanted her brother to have the child and keep the child until he was large enough to make his own living; that the respondent and his mother had raised and taken care of the child for a number of years, and she stated that she wanted her brother to have him; that the petitioner told her that her husband was mean to the child and that he beat the child; that the husband of the petitioner drinks and was in jail for about fourteen months.

The child testified: "I lived in South Carolina with my mother and stepfather. My grandmother and my uncle, Groves McKellar, raised me. I stayed with them until I was eight years old. I have been living with my mother and stepfather now for about four years. My stepfather beats me with a strop. He beats me three or four times a week. He would beat me about just anything. He would come home drunk and just beat me up about nothing. He would also beat my mother. He beat my mother twice that I know of. I was afraid of him. I am afraid to live with him. I want to live with my uncle, Groves McKellar. I love my uncle Groves and he loves me. Uncle Groves' wife is good to me and I love her. They buy me clothes and look after me good."

The Sheriff of Lincoln County testified that so far as he knew the respondent was a man of good character and did not make or sell liquor, and that he considered him a proper person to rear the child. The landlord of the respondent testified to substantially the same thing as the sheriff. The respondent testified that he was able and willing to keep and rear the child and send him to school; that he had not sent him to school for some time, as the schools were closed on account of bad roads, but that when the schools opened he intended sending the child to school; that he had plenty of good clothes for the child, and was amply able to care for and support him; and that he had kept and supported the child for eight years from his birth. He also testified that the mother of the child had left the child with him and his mother, and went off with a married man with whom she lived for a while, then went off with her present husband, whom she afterwards married.

On examination by the court, the petitioner admitted that she had sworn out a warrant for assault and battery against her husband at the time she called her sister to come for her and her children.