Baynes v. Cowart , 209 Ga. 376 ( 1952 )

209 Ga. 376 (1952) 72 S.E.2d 716

BAYNES
v.
COWART et al.

17937.

Supreme Court of Georgia.

Submitted July 14, 1952. Decided October 15, 1952.

W. B. Greene, for plaintiff in error.

Ingram & Tull, contra.

ALMAND, Justice.

Where the mother of a child, to whom custody has been awarded by a divorce decree, dies, the prima facie right of custody automatically inures to the father. Chapin v. Cummings, 191 Ga. 408, 412 (12 S.E. 2d, 312); Girtman v. Girtman, 191 Ga. 173, 181 (11 S.E. 2d, 782); Hill v. Rivers, 200 Ga. 354, 357 (37 S.E. 2d, 386); Raily v. Smith, 202 Ga. 185 (42 S.E. 2d, 491). In such circumstances the father's right to custody can be lost only by one of the grounds provided under Code §§ 74-108, 74-109, or 74-110; and, unless so lost, the discretion reposed in the trial judge under Code § 50-121 does not apply. Bond v. Norwood, 195 Ga. 383 (24 S.E. 2d, 289); Morris v. Grant, 196 Ga. 692 (27 S.E. 2d, 295). Accordingly, in a habeas corpus proceeding between the father and the maternal grandparents of the child, where there was no evidence that the father had lost parental control, it was error for the trial judge to award the custody of the child to the maternal grandparents.

Judgment reversed. All the Justices concur, except Candler, J., who dissents.