Dearman v. Rhoden , 235 Ga. 457 ( 1975 )

Gunter, Justice,

dissenting.

This case is a re-run of Padgett v. Penland, 230 Ga. 824 (199 SE2d 210) (1973). I dissented there on the ground that the superior court did not have the power to order a change of custody under the facts there presented. The courts in Padgett and this case were, in my opinion, without subject-matter jurisdiction to adjudicate legal custody. A person in actual possession of a child cannot bring an application for a writ of habeas corpus against a person not in actual possession of the child, nor can the person in possession of the child bring an action in the nature of habeas corpus against a person not in actual possession of the child.

Since I think that the trial court in this case lacked subject-matter jurisdiction, and was therefore without power to order a change of custody, I would reverse the judgment below.

I respectfully dissent, and I am authorized to state that Justice Ingram joins in this dissent.