Lucas v. Smith , 201 Ga. 834 ( 1947 )

In a habeas corpus proceeding, where the contest for the custody of minor children was between grandparents, and the paternal grandmother based her claim on an alleged legal right, the evidence showing unusual and exceptional facts and circumstances, it was not error for the trial judge in the exercise of his discretion to award the custody of the children to their maternal grandparents.

No. 15693. FEBRUARY 6, 1947. J. D. Smith, the maternal grandfather of two minor children, Patricia Ann and Linda Carroll Lucas, aged three years and ten months, respectively, filed his petition for habeas corpus against Mrs. Will Lucas, the paternal grandmother of the children. The petition alleged that: The mother of the children was killed on July 29, 1946, and Needham Lucas, the father of the children, was confined in the common jail of Twiggs County, charged with the murder of his wife. Prior to the date of the actual killing, Lucas wilfully mistreated his wife and children and he is not a fit and proper person to have custody of the children. Mrs. Will Lucas is illegally detaining from the petitioner the persons of the children named. The petitioner is financially able to provide necessities, to provide for their care and welfare, and he and his wife will train and teach them in a Christian manner of living.

The respondent's answer admitted the relationship of the children as alleged, and admitted that the father of the children was confined in the common jail of Twiggs County. She alleged that: Since the birth of the children they have remained in her home; she is financially and physically able to have their custody and control; and she has them domiciled in a Christian home under good environment. She is holding possession of them under a contract with the father relinquishing parental control to her.

The evidence for the petitioner showed that during the married life of Needham Lucas and the petitioner's daughter, Lucas was cruel to her, and on several occasions she separated from him and returned to the home of the petitioner, and on one occasion instituted divorce and alimony proceedings against her husband. The last separation occurred about five months before the homicide of the petitioner's daughter. Under all of the testimony, the trial judge was amply authorized to find that the petitioner and his wife were fit and proper persons to have custody of the minor children named.

The evidence for the respondent, Mrs. Will Lucas, showed that she was residing in the home of her son-in-law, and had not resided on her farm, where the homicide occurred, since its date. The home maintained by her son-in-law was comfortable, the children were well cared for, and the son-in-law was perfectly willing for Mrs. Lucas to have and care for the children in his home. The contract introduced, whereby the father of the children conveyed his parental authority to his mother, Mrs. Lucas, was made during the time he was incarcerated in the common jail of Twiggs County charged with the murder of his wife, Anne Corene Lucas.

At the conclusion of the evidence the trial judge entered an order awarding the custody of the children to the maternal grandparents, Mr. and Mrs. J. D. Smith, in which order it was stated that, since the father was charged with the homicide of his wife, he could not control the custody of his children, and further stated as follows: "In consideration of the fact that Mrs. Lucas has lost her good husband, she is now living away from her homestead and living under the shoulder and protection of her good son-in-law, it would be going a long way to say that she was physically, morally, and otherwise as capable of devoting as much attention to these children as the maternal grandparents. Except for her devoted daughters, she is alone. Mr. and Mrs. Smith are happily living together. Their character and moral and financial capacity is conceded. There is a small difference in the situation that tends to make the court think, at least until there is a change in the circumstances of the life of the parties, that the custody of these children should be with the maternal grandparents." The court further granted to Mrs. Lucas the right to visit the children at any time consistent with their welfare.

The exception here, by the paternal grandmother, Mrs. Lucas, is to the judgment awarding the custody of the children to their maternal grandparents. Counsel for the plaintiff in error insist that under the Code, § 74-108, parental power of the father over his children can be lost only in one of the methods provided by such section; that the father in this instance had not lost his parental control and authority, and under the assignment of such parental authority to Mrs. Lucas, she was entitled to the possession, custody, and control of the minor children. This section of the Code, if construed alone, would appear to authorize the contentions of counsel, but our system of law is not to be construed by single Code sections or single provisions of the law; the entire system must be construed as a whole to determine the intent and purpose of the law as applied to each particular case or state of facts. See Huntsinger v. State,200 Ga. 127 (36 S.E.2d 92), and authorities cited. The Code, § 50-121, provides that, in writs of habeas corpus, "the court, on hearing all the facts, may exercise his discretion as to whom the custody of such . . child shall be given, and shall have power to give such custody of a child to a third person."

This court has many times construed the discretion vested in the trial judge in habeas corpus proceedings for the custody of children. "The judge in a habeas corpus proceeding involving the custody of children must look to the welfare of the children, and has a very wide discretion, within legal limits, in reference to such matters; and where the decision complained of is within such discretion, gross abuse must appear in order to work a reversal of his judgment." Abernathy v. Abernathy, 165 Ga. 208 (140 S.E. 382).

The discretion vested in the trial judge "ought to be exercised in favor of the party having the legal right, unless the circumstances of the case and the precedents established would justify the court, acting for the welfare of the child, in refusing it." Miller v. Wallace, 76 Ga. 479 (2 Am. St. R. 48).

The rules of law applicable here appear to have been summed up in Williams v. Crosby, 118 Ga. 298 (45 S.E. 282), where this court said: "In a contest between two parties, both of whom are fit and proper persons, the one having the legal right should prevail. If both are proper parties, but neither has a legal right, the one having the strongest moral claim should prevail. But in every case, regardless of the parties, the welfare of the child is the controlling and important fact. This is not intended to nullify the laws of nature; for in most instances it will be found that the legal right of the parent and the interest of the child are the same. But if through misconduct or other circumstances it appears that the case is exceptional, and that the welfare of the child requires that it should be separated even from its parent, the parents patriae must protect the helpless and the innocent. They are the wards of the court, the hope of the State, and the seed corn of the future."

In the present case, the contest is not between a person having the legal right on one side and persons without such legal right on the other side, unless it should be said that the contract made by the father at the time he was incarcerated in jail transferred his parental authority to the plaintiff in error, Mrs. Will Lucas. Ordinarily a father may transfer and assign his parental authority, where the wife is dead, and such assignment would be valid. There is evidence, however, in this case, of "misconduct or other circumstances" as to the father, which at least places him under suspicion as the murderer of his wife, the mother of the children. Such evidence makes this case exceptional on its facts, and authorizes a judgment based on the court's determination of what is best for the welfare and happiness of the children, independently of any expression or wishes of the father.

There does not appear that abuse of discretion by the trial court necessary to reverse the present judgment.

Judgment affirmed. All the Justices concur. Atkinson, J.,concurs in the judgment but not in all that is said in theopinion.