Attaway v. Attaway , 194 Ga. 448 ( 1942 )

In a contest between the father and mother over the custody of a minor child in a habeas-corpus proceeding the welfare of the child is of paramount consideration, and an award made by the judge based upon the evidence and in the exercise of a sound discretion will not be set aside.

(a) The fact that the wife in a previous divorce action had expressed willingness for the custody of the child to be awarded to the father does not take the case from the operation of the above principle, since it appears that no award of custody was there made.

No. 14244. SEPTEMBER 15, 1942. This is a habeas-corpus case brought by the mother of a minor child. The defendants are the child's father and the father's parents. The father and mother of the child were divorced a short time before the present proceeding was instituted. In her petition for divorce the wife alleged "That the defendant and his parents are financially able to support the child, and she [the plaintiff] has no objection to the custody of the child being awarded to the defendant, she being unable to support the child and care for it at this time." This allegation was stricken by amendment before the divorce decree, and there was no award of custody made in that proceeding, although at that time and since then the child was in the custody of the defendants.

The judgment here excepted to awarded the child to the plaintiff. It was entered after the judge had heard evidence as to the fitness of all the parties who claimed custody. "In all cases where the custody of any minor child or children is involved between the parents, there shall be no prima facie right to the custody of such child or children in the father, but the court hearing such issue of custody may exercise its sound discretion, taking into consideration all the circumstances of the case, as to whose custody such child or children shall be awarded; the duty of the court being in all such cases, in exercising such discretion, to look to and determine solely what is for the best interest of the child or children, and what will best promote their welfare and happiness, and make award accordingly." Code, § 74-107. "While formerly the father was entitled to the custody of his children during their minority, now in all cases involving the custody of any minor child between parents there is no prima facie right to the custody of such child in the father; but the court having the issue of custody before it may exercise its sound discretion, taking into consideration all the circumstances of the case in deciding to which of the parents the custody of the child shall be awarded, it being the duty of the court in exercising such discretion to determine solely what is to the best interest of the child." Lockhart v. Lockhart,173 Ga. 846 (162 S.E. 129).

The plaintiff in error contends, however, that the foregoing principles do not here apply, because in her original petition the wife had in effect relinquished her right to custody. This contention can not be sustained. At most the statement in her petition, subsequently withdrawn by amendment, was merely a voluntary expression on her part, and referred only to her inability to care for the child "at this time." Her apparent willingness to an award at that time was not acted upon, because no award was made. But even if it had been made, she would not be subsequently barred from showing "a change of circumstances affecting the welfare of the child," and thereby obtaining custody. Shields v. Bodenhamer, 180 Ga. 122 (178 S.E. 294); Slate v. Coggins, 181 Ga. 17 (181 S.E. 145). Under these principles the judge was authorized, in his discretion, to make the award as he did. See Chapin v. Cummings, 191 Ga. 408 (12 S.E.2d 312), and cit.

Judgment affirmed. All the Justices concur.