Canning v. Evans et al., Supreme Court of Georgia (Dec. 6, 1982)

Factual and Procedural Background

This is a child custody dispute concerning Miga Faith Canning, a 5-year-old. After a 1977 divorce the mother had custody and the father liberal visitation. The mother died April 3, 1982 while the child was visiting the father. For the mother's funeral in Tift County the father permitted the maternal grandparents to keep the child temporarily with the understanding they would return the child on his request. About a week later the father requested return and the grandparents refused. On April 20, 1982 the father filed a habeas corpus petition in Tift Superior Court seeking return of the child; the grandparents counterclaimed, the habeas court found the father unfit and granted permanent custody to the grandparents. The father appealed to the Supreme Court of Georgia, which reversed.

Legal Issues Presented

Whether the principles enunciated in Matthews v. Matthews should apply to the facts of this case.
Specifically, whether a third party who illegally withholds custody from the surviving parent should be allowed to counterclaim and contest custody when the surviving parent files a habeas petition in an inconvenient forum to regain custody.

Arguments of the Parties

The opinion does not contain a detailed account of the parties' legal arguments.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Miele v. Gregory	Supports that the surviving parent has the right to custody under Georgia law.	Used to support the proposition that the father, as surviving parent, has a right to custody.
Wright v. Hanson	Supports that the surviving parent has the right to custody under Georgia law.	Used to support the father's statutory/constitutional right to custody.
Land v. Wrobel	Supports that the surviving parent has the right to custody under Georgia law.	Relied on to establish the father's right to custody.
Curry v. Little	Establishes that generally a third party has no legal right to custody and no standing to bring habeas when a natural parent with parental rights exists.	Quoted to limit third-party standing to obtain custody against a living parent.
Spitz v. Holland	Establishes that generally a third party lacks legal right/standing to obtain custody over a child with a living natural parent.	Applied to show third parties ordinarily cannot obtain custody by habeas against a living parent.
Bryant v. Wigley	Recognizes that Code Ann. § 74-106 gives third parties limited access to habeas relief where the surviving parent brings the petition.	Noted as an instance allowing a counterclaim when parties resided in the same county; distinguished from the present case.
Matthews v. Matthews	Public policy rule: a noncustodial parent should not entice the custodial parent into his jurisdiction to relitigate custody; custody must be litigated where the legal custodian resides.	Held applicable here to bar a third party who illegally withholds a child from counterclaiming in an inconvenient forum; grounded court's prohibition on entertaining the grandparents' counterclaim.
Woods v. Woods	Reiteration of the Matthews public policy against enticing custodial parents into inconvenient fora for relitigation.	Cited as part of a line of cases reaffirming Matthews' policy supporting the Court's application here.
Hudson v. White	Reiteration of the Matthews public policy.	Used as additional authority reaffirming Matthews' rule.
Bayard v. Willis	Reiteration of the Matthews public policy.	Cited as further precedent endorsing the Matthews principle.
Robertson v. Robertson	Application of Matthews' principle including to agreements concerning custody and situations without prior court orders.	Referenced to show Matthews' rule applies beyond simple custodial/noncustodial contests and even where no prior order exists.
Etzion v. Evans	Reiteration/application consistent with Matthews' policy.	Cited in the line of cases reaffirming the Matthews doctrine.
Reid v. Adams	Example of applying Matthews where contesting parties were not simply custodial and noncustodial parents.	Used to demonstrate the Matthews principle's broader applicability.

Court's Reasoning and Analysis

The Court began by recognizing the father's right to custody as the surviving parent under Georgia law and cited authorities supporting that right. It recited the general rule that third parties lack standing to obtain custody against a living natural parent, while noting a statutory limited exception when the surviving parent brings the habeas petition. The Court focused on whether the Matthews doctrine should apply: Matthews bars a noncustodial party from enticing the custodial party into an inconvenient forum to relitigate custody, a rule adopted to discourage illegal child snatching and detentions. The Court distinguished Bryant (where parties resided in the same county) and concluded Matthews' public policy applies here because the grandparents induced and then refused to return the child, forcing the father to file habeas in the inconvenient forum. On that basis the Court held the habeas court should not have entertained the grandparents' counterclaim; because the father demonstrated his right to custody, the habeas court erred in denying his petition.

Holding and Implications

Judgment reversed.

Direct effect: the Supreme Court reversed the habeas court's grant of permanent custody to the grandparents, held that the grandparents' counterclaim was improperly entertained under the Matthews policy, and recognized the father's right to custody. The opinion applies existing precedent and public-policy principles; it does not announce a new legal rule beyond applying Matthews to these facts.

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CANNING v. EVANS et al.

JORDAN, Chief Justice.

This case involves a child custody dispute over Miga Faith Canning, a 5-year-old female child, between her father, the appellant, and her maternal grandparents, the appellees.

The child was 4 months old when her father and mother divorced in 1977. With the consent of the parties, custody was awarded to the mother and liberal visitation privileges to the father. On April 3, 1982, the child's mother died. At the time of her death, the child was at the father's home in Gwinnett County on visitation. The mother's funeral was in Tift County. When the father took the child down for the funeral, the grandparents requested that the father leave the child with them for a short visit. He agreed with the understanding that they return the child upon his request. About a week later, the father requested the child's return, and the appellees refused.

Consequently, on April 20, 1982, the father filed a habeas petition seeking return of the child to his custody. The grandparents counterclaimed, and the habeas court found the father to be unfit and granted permanent custody to the grandparents. The father appeals. We reverse.

In this case, the father as the surviving parent has the right to custody of the child under the laws of Georgia. See Miele v. Gregory, 248 Ga. 93 (2) ( 281 S.E.2d 565) (1981); Wright v. Hanson, 248 Ga. 523 (2) ( 283 S.E.2d 882) (1981); Land v. Wrobel, 220 Ga. 260 ( 138 S.E.2d 315) (1964); and Code Ann. § 74-106. Generally, a third party (i.e., aunt and uncle, grandparents, etc.) has no legal right to custody of a minor child who has a living natural parent with parental rights; consequently, such a third party has no legal standing to bring a habeas corpus action to obtain custody of such a child. Curry v. Little, 243 Ga. 219 ( 253 S.E.2d 201) (1979); Spitz v. Holland, 243 Ga. 9 ( 252 S.E.2d 406) (1979). However, Code Ann. § 74-106 gives third parties limited access to habeas relief where the surviving parent brings the habeas petition. See, Bryant v. Wigley, 246 Ga. 155 (2) ( 269 S.E.2d 418) (1980).

This case presents the question of whether the principles enunciated in Matthews v. Matthews, 238 Ga. 201 ( 232 S.E.2d 76) (1977) should apply to the facts of this case. Specifically, the question is whether a third party who illegally withholds custody from the surviving parent (i.e., the legal custodian) should be allowed to counterclaim and contest custody when the surviving parent files a habeas petition in the inconvenient forum to regain his or her rightful custody. We find that the public policy of Matthews, supra, applies and prevents a habeas court in such a case from entertaining the counterclaim.

In Bryant v. Wigley, supra, we allowed the habeas court to entertain the counterclaim of an aunt and uncle under similar facts. However, in Bryant there was no question of an inconvenient or impermissible forum as both parties, the father and the aunt and uncle, resided in the same county.

This court in Matthews, supra, found that as a matter of public policy a noncustodial parent should not be able to entice the custodial parent into his jurisdiction for purposes of relitigating questions of custody previously decided by court order. We found that custody questions in such a case have to be litigated in the county or state where the legal custodian resides. This rule was adopted to discourage illegal child snatchings and detentions which tactics would force the legal custodian to litigate custody questions in an inconvenient forum.

The same policy considerations are expressed in the "Georgia Child Custody Intrastate Jurisdiction Act of 1978." See §§ 24-301b — 305b.

This policy has been reiterated many times since Matthews, supra. See Woods v. Woods, 238 Ga. 737 ( 235 S.E.2d 36) (1977); Hudson v. White, 240 Ga. 209 ( 240 S.E.2d 18) (1977); Bayard v. Willis, 241 Ga. 459 ( 246 S.E.2d 315) (1978); Robertson v. Robertson, 247 Ga. 810 (2) ( 280 S.E.2d 335) (1981); Etzion v. Evans, 247 Ga. 390 (1) ( 276 S.E.2d 577) (1981). It has been applied to cases where the parties contesting custody were not just the custodial parent and noncustodial parent (see, Reid v. Adams, 241 Ga. 521 ( 246 S.E.2d 655) (1978)) and to cases where there had been no court order awarding custody. (See, Robertson v. Robertson, supra, 247 Ga. at 812, where we applied the principle of Matthews, supra, to an agreement concerning custody).

In this case, the facts show that the father, the legal custodian, allowed the child to stay with the grandparents upon their request. The grandparents acknowledge that they agreed to return the child to the father upon request and that upon his request they refused to do so. Consequently, the father was forced to file a habeas petition in an inconvenient forum, Tift County, in order to regain custody. As a matter of public policy, such an illegal detention of a child should not be rewarded by allowing the grandparents to counterclaim and contest custody. Therefore, the habeas court improperly entertained the grandparents' counterclaim. As the father demonstrated his right to custody, the habeas court erred in not granting his petition.

Judgment reversed. All the Justices concur.