Raily v. Smith

A judgment on a writ of habeas corpus awarding custody of a minor child to his mother, where the father is dead, will not be set aside on evidence which fails to show conclusively either abandonment of the child by the mother, or that the welfare and happiness of the child would be best served by an award of custody to his aunts, whose claim is based on a parol contract with the deceased father.

No. 15768. APRIL 19, 1947. On December 24, 1946, Susie Reeves Smith brought a petition for habeas corpus in Twiggs Superior Court, alleging that: She is the mother and sole surviving parent of Jivous Raily, a male child 12 years of age. Such child is being illegally detained by the Misses Georgia and Maggie Raily, sisters of the deceased father of the child. The plaintiff has demanded possession of the child, but the Misses Raily have refused to deliver him to her.

The respondents, Georgia and Maggie Raily, answered that: They admit that the plaintiff is the mother and sole surviving parent of Jivous Raily, and that they have refused to deliver custody of the child to her. For a period of about seven years the child has resided in the home with them and their brother, John Raily. When the child was about five years old, the plaintiff abandoned him and his father and moved to Macon, and for the period of seven years has lived separate and apart from them and has hardly seen the child. She has remarried, and is unfit and unsuited to have his custody and control. A total divorce was granted between the plaintiff and John Raily, and in such divorced proceedings the custody of the child was awarded to John Raily John Raily died on December 17, 1946. Prior to his death he gave the child to the respondents, and his custody is theirs by contract with the deceased father. They pray that his custody be awarded to them by the court.

On the hearing of the cause, Mrs. Susie Reeves Smith testified that: She was formerly married to John Raily, and separated from him about six and a half years ago. She left her boy with her husband and the aunts. After the separation she went to see her child and took him something every week-end, or every other week-end, until her husband sent word to her not to come any more. After she separated from her husband, she moved to Macon and stayed with her sister for about six months before she got a job. She worked at various named places up until the time that she married again. She was divorced from John Raily on April 9, 1946, and married Howard E. Smith on May 18, 1946. On the trial of the divorce case, the question of custody was brought to the attention of the court, and she told the judge that she was not earning enough money to buy food and pay someone to keep the child, and that she could not control him. Since that time her financial and domestic situation has changed. She has a good home, a good husband, and is prepared to take care of the child and give him a good education. She now lives in a rented apartment, but they plan to buy a home. She is not now working. With the help of her husband she expects to be able to care for and control the child. Her former husband, John Raily, died about three weeks before the hearing. She has since been to the home of the Misses Raily, trying to get the child to go home with her. When she inquired for him, he ran out the back door. The aunts do not exercise any discipline over him, and do not make him go to school. Due to her circumstances, she consented for her former husband to have custody of the child, but for no one else.

Howard E. Smith, husband of the plaintiff, testified that he was willing and anxious to maintain a home for his wife and her boy. His annual earnings are $2600.

Miss Georgia Raily testified that: She is 56 years old, and her sister is 58. They live on a rented farm. Her brother John operated the farm before his death, and she assisted him. They have some livestock. They are living on the crops made by their brother, and that is the only prospect they now have of a living. Her brother, about 60 years old, and his boy, are coming to farm the land next year. Before the father of the child died he gave the child to her.

There was evidence by several persons that: The home in which Jivous Raily was living with his aunts was a comfortable farm house. The Raily sisters had been supported by their brother, John Raily, and do not now have any means of support except the rented farm. The reputation of the aunts is good.

Jivous Raily testified that: He is 12 years old. He goes to school in Danville "pretty regularly," and is in the fifth grade. He has lived with his aunts ever since he can remember, and loves them. His aunts told him that his mother left him when he was about five years old. He does not know much about his mother. His mother came over to see him and wanted him to go home with her, and he told her that he did not want to go.

The exception is to the judgment awarding custody of the child to his mother. It is conceded by counsel for the plaintiffs in error that the trial judge is vested with a broad discretion in habeas corpus cases in determining what will best promote the interest and welfare of the child, but it is the contention of counsel that the trial judge was under the erroneous impression that the mother had a superior right to the custody of the child, and that he had little or no discretion in the matter, and that, the judgment being rendered under a misconception of the law, the award was an abuse of discretion. It is also urged that the trial judge overlooked the Code, § 74-106, as follows: "Upon the death of the father, the mother is entitled to the possession of the child until his arrival at such age that his education requires the guardian to take possession of him. In cases of separation of the parents, or of the death of one and the subsequent marriage of the survivor, the court, upon writ of habeas corpus, may exercise a discretion as to the possession of the child, looking solely to his interest and welfare."

It is urged that — since the record shows a separation of the mother from the father and child for a long period of years, a divorce proceeding in which the custody of the child was given to the father by voluntary action of the mother, she stating that she could not control him, and her subsequent remarriage — this amounted to a forfeiture or abandonment of the child; and that the father had the right to give the child to the respondent, Miss. Georgia Raily. It is also contended that the testimony of the child should have been considered by the court.

While the trial judge was authorized to consider the fact that the mother of the child had separated from his father a number of years before the death of the father, and left the child with him, in determining whether or not custody by the mother might best promote the welfare and happiness of the child, and the further question of her fitness to have custody of the child, the evidence did not disclose such abandonment of the child by the mother as would cause her to forfeit her right of custody. "Until majority, it is the duty of the father to provide for the maintenance, protection, and education of his child." Code, § 74-105. "Upon the death of the father, the duty of supporting dependent minor children falls upon the mother." Chapin v.Cummings, 191 Ga. 412 (12 S.E.2d 312). The Code, § 74-108 (3), deals with the loss of parental power only by the father by failure to provide necessaries for his child or his abandonment of his family. In Durden v. Johnson, 194 Ga. 689 (22 S.E.2d 514), cited by counsel for the plaintiffs in error, in support of the theory that the mother could lose her parental power just as in the case of the father, the court was dealing with a voluntary contract of the mother releasing her right to the custody of her child to a third person. Where, as in the present case, in a separation of parents the mother permits the father to retain custody of the child, it does not necessarily follow that by such action she has waived her rights as to future custody, on the theory that such action on her part in permitting the child to remain with his father amounted to an abandonment.

"On the death of the parent who holds custody of a child under a divorce decree, the right to the custody automatically inures to the surviving parent." Girtman v. Girtman, 191 Ga. 173,181 (11 S.E.2d 782). The award of custody of the child, in the divorce proceedings, to the father with the voluntary consent of the mother would not amount to an abandonment of the child by the mother.

Since there was no forfeiture of the right of custody of the child by the mother, the trial judge was correct in his interpretation of the law that, while he had a discretion in the matter in determining to whom the custody of the child should be given, his discretion had to be exercised in favor of the party having the legal right, unless the evidence showed that the welfare and interest of the child would justify him in overriding the rights of the person holding the legal claim. Shope v.Singleton, 196 Ga. 506 (27 S.E.2d 26). The testimony of the child, 12 years of age, in regard to his wish to live with his aunts, was not controlling on the trial judge, although it could properly be given consideration. Chunn v. Graham,117 Ga. 552 (43 S.E. 987). A review of the evidence does not show that the award of the custody of the child to his mother was an abuse of discretion by the judge.

It is insisted by counsel for the plaintiffs in error that — while the trial judge stated that his award was "temporary," he would maintain jurisdiction of the case, and on a proper showing would modify the judgment — the award was a permanent adjustment of the custody of the child upon the facts as they existed at the time it was entered. In Lockhart v. Lockhart, 173 Ga. 853 (162 S.E. 129), the status of a judgment in a habeas corpus proceeding such as the present was explained in language as follows: "While judgments in habeas-corpus proceedings instituted by parents to secure the custody of their minor children are conclusive upon them, such conclusiveness relates to the status existing at the time of the rendition of such judgments. Change of status may authorize a different judgment in a subsequent proceeding. The duty of the State as parents patriae, and the jurisdiction of a habeas-corpus court, are continuing, and not limited to . . the date of a previous judgment in a habeas-corpus proceeding. . . The capacity, ability, or fitness of the party to whom the child was awarded in the previous proceeding may thereafter become entirely different. . . Change of circumstances may render a change necessary in order to promote the health, happiness, or welfare of the child." The order of the trial judge indicates that he realized that the order was final under the circumstances existing at the hearing, but that a change of circumstances might authorize a change in award at a subsequent proceeding. In any event, the plaintiffs in error were not harmed by the statement in the order of the court that the award was "temporary."

Judgment affirmed. All the Justices concur.