Shipps v. Shipps , 186 Ga. 494 ( 1938 )

Per Curiam.

1. Whether or not the instant proceeding involving the custody of children of divorced parents should be considered as governed by the law applicable to awarding custody of children in a divorce case or by the law applicable to such custody in a habeas-corpus case, tbe paramount question for determination was the best interest and welfare of the children, after consideration of all the facts and circumstances, including the natural and legal rights of the parents. In either view the trial judge was vested with a discretion to award custody to a third person, provided it appeared that such disposition was to the best interest of the children. Code, §§ 30-127, 50-121, 74-107; Miller v. Wallace, 76 Ga. 479 (2 Am. St. R. 48); Monk v. McDaniel, 116 Ga. 108 (42 S. E. 360); Williams v. Crosby, 118 Ga. 296 (45 S. E. 282); Zachry v. Zachry, 140 Ga. 479 (79 S. E. 115); Milner v. Gatlin, 143 Ga. 816 (85 S. E. 1045, L. R. A. 1916B, 977); Hammond v. Murray, 151 Ga. 816 (108 S. E. 203); Phillips v. Phillips, 161 Ga. 79 (129 S. E. 644).

2. Under the evidence adduced in the instant case, however, the same being a contest between divorced parents for custody of their children, the judge abused his discretion in awarding custody of the minor sons to one who was not a guardian, and who was not related in any manner to such children.

3. Under the evidence, there was no abuse of discretion in awarding custody of the minor daughter to the mother.

Judgment reversed in case No. 12188; reversed in part in case No. 12170.

All the Justices concur, except