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Docket Number

33936.

Attorney(S)

Dupree Staples, Hylton B. Dupree, Jr., Barry Staples, for appellant. Glyndon C. Pruitt, for appellee.

Judges

MARSHALL, Justice.

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Smart Summary

HIGBEE v. TUCK, 33936 (Supreme Court of Georgia, Oct. 17, 1978)

Factual and Procedural Background

The appellant, the natural father, appealed the denial of his petition for a writ of habeas corpus seeking custody of his three minor children. The children had been in the custody of the appellee, their maternal grandmother, pursuant to the trial court's September 23, 1976 order in the father's earlier habeas corpus action. The present appeal challenges the Gwinnett Superior Court's denial of relief; Judge Merritt presided below. The prior custody award was not appealed and thus was treated as res judicata with respect to custody at the time this habeas petition was brought.

Legal Issues Presented

Whether the trial court erred in denying the father's habeas corpus petition seeking custody of his children who were in the permanent custody of a maternal grandmother.
Whether, and under what standard, a parent may obtain custody from a third party previously awarded permanent custody (i.e., whether a showing of changed conditions is required and what evidence may be considered).
Whether it was error for the trial court to consider evidence and findings from the prior habeas corpus hearing when assessing whether changed conditions existed.

Arguments of the Parties

Appellant's Arguments

The appellant relied primarily on a claimed change of conditions (his marriage and cohabitation with his present wife) as a basis to obtain custody from the grandmother.
The appellant contended the trial court erred in considering evidence adduced at the previous habeas corpus hearing, citing Fryer v. Stynchcombe, Altman v. Fla.-Ga. Tractor Co., Carten v. Loveless, and Akins v. Beaver.

Appellee's Arguments

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

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Anderson v. Anderson, 240 Ga. 795, 242 S.E.2d 593 (1978)	The test in a divorce action between parents for awarding custody is "the best interest of the child."	Quoted as part of contrasting the parental-best-interest standard with the heightened protection afforded parental custody when a third party seeks custody.
Jackson v. Jackson, 230 Ga. 499, 197 S.E.2d 705 (1973)	Also cited for the "best interest of the child" test in parental custody disputes in divorce.	Used with Anderson to describe the usual parental custody standard in divorce cases, contrasted with third-party custody situations.
Childs v. Childs, 237 Ga. 177, 227 S.E.2d 49 (1976)	When a third party seeks custody from a parent, a parent is entitled to custody unless shown by clear and convincing evidence that the parent is unfit or otherwise disqualified under law.	Cited as authority for the heightened evidentiary standard protecting parental custody against third-party claims.
Conroy v. Jones, 238 Ga. 321, 232 S.E.2d 917 (1977)	Same principle: third-party custody requires clear and convincing proof of parental unfitness or statutory disqualification.	Included among authorities establishing the standard when a third party sues to obtain custody from a parent; referenced in discussing the prior hearing's findings.
Drummond v. Fulton County Dept. of Family c. Services, 237 Ga. 449, 228 S.E.2d 839 (1976)	Support for the proposition that third-party custody requires stronger showing before depriving parents of custody.	Quoted with other cases to show the governing standard where custody is sought by a nonparent.
Gazaway v. Brackett, 241 Ga. 127, 244 S.E.2d 238 (1978)	Where a third party has been awarded permanent custody, a parent may obtain custody by showing a change of conditions affecting the welfare of the child.	Cited to support the rule that a parent must show changed conditions to reclaim custody from a third party; the court relied on this standard in reviewing the claimed change.
Robinson v. Ashmore, 232 Ga. 498, 207 S.E.2d 484 (1974)	Referenced as an example of obtaining custody from a third party by showing changed conditions.	Quoted within Gazaway's framework; used to describe the procedural method by which a parent may seek custody after a third-party award.
Fryer v. Stynchcombe, 228 Ga. 576, 186 S.E.2d 885 (1972)	Cited by appellant to argue error in consideration of prior hearing evidence.	The court distinguished this case, holding that unlike the cited cases, consideration of the prior order was essential here to determine change of conditions and thus was not error.
Altman v. Fla.-Ga. Tractor Co., 217 Ga. 292, 122 S.E.2d 88 (1961)	Cited by appellant in support of his objection to consideration of prior hearing evidence.	Distinguished by the court on the ground that the present circumstances required consideration of the prior hearing to determine whether conditions changed.
Carten v. Loveless, 192 Ga. 715, 16 S.E.2d 711 (1941)	Cited by appellant as authority against considering prior hearing evidence.	Distinguished for the same reason; the court found the hearings and testimony sufficiently intertwined to justify consideration of the prior proceedings.
Akins v. Beaver, 98 Ga. App. 472, 106 S.E.2d 91 (1958)	Cited by appellant to object to use of prior hearing evidence.	Distinguished by the court; consideration of the former order was held not to be error under the circumstances described in the opinion.

Court's Reasoning and Analysis

The court first observed that the trial court found the earlier habeas corpus award to the maternal grandmother was the first permanent award of custody. The opinion reiterated the governing distinctions: in parental disputes in divorce the test is the child's best interest, but where a third party seeks custody from a parent the parent is presumptively entitled to custody unless clear and convincing evidence shows unfitness or statutory disqualification (citing Childs, Conroy, Drummond, etc.).

The court noted the prior custody order was not appealed and therefore was res judicata as to custody at the time the present habeas petition was filed. Under the rule stated in Gazaway, a parent seeking custody from a third party awarded permanent custody must demonstrate a change of conditions affecting the child's welfare. The trial court found the appellant's primary changed condition was his marriage to his present wife.

Addressing the appellant's contention that the trial court erred in considering evidence from the previous hearing (citing several cases), the Supreme Court explained that, unlike those cited authorities, it was essential here to consider the prior order and findings in order to determine whether a change of conditions had occurred. The trial court found the two hearings' testimony very similar, held within a year and inextricably intertwined, and that the primary changed condition would not favorably affect the children's welfare. Given those findings, consideration of the former order was not error.

Finally, on review of the evidence regarding conditions affecting the children's welfare, the Supreme Court concluded that reasonable evidence authorized the award continuing custody in the maternal grandmother.

Holding and Implications

Judgment affirmed.

Direct effect: the trial court's denial of the appellant father's habeas corpus petition was affirmed, and custody of the three minor children remains with the maternal grandmother. The opinion does not announce a new or broadened precedent beyond applying established authorities and distinguishing the appellant's cited cases on the record before the court.

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HIGBEE v. TUCK.

MARSHALL, Justice.

The appellant natural father appeals from the denial of his petition for a writ of habeas corpus, by which he had sought to obtain the custody of his three minor children, who had been in the custody of the appellee maternal grandmother since and by reason of the court's September 23, 1976, order in the father's previous habeas corpus action against the grandmother and others. Finding no reversible error, we affirm.

1. In the order appealed from, the trial court found that "the court's award of custody to the maternal grandmother as a result of the habeas corpus hearing on July 13, 1976, was the first permanent award of custody of the children."

"In a divorce action in which child custody is an issue, the test for use by the trial court in determining which parent shall have child custody is `the best interest of the child.' Anderson v. Anderson, 240 Ga. 795 [ 242 S.E.2d 593] (1978); Jackson v. Jackson, 230 Ga. 499 ( 197 S.E.2d 705) (1973); Code Ann. § 74-107... However, where a third party (e.g., a grandparent) is being awarded custody of a child as part of a divorce case, or where such a third party sues to obtain child custody from a parent, the test is not simply the `best interests' or `welfare' of the child because the parents are being deprived of custody of their child. In such cases, a parent is entitled to be awarded custody by the trial court unless it is shown by clear and convincing evidence that such parent is unfit or otherwise not entitled to custody under the laws. Childs v. Childs, 237 Ga. 177 ( 227 S.E.2d 49) (1976); Conroy v. Jones, 238 Ga. 321 ( 232 S.E.2d 917) (1977); Drummond v. Fulton County Dept. of Family c. Services, 237 Ga. 449, 451 ( 228 S.E.2d 839) (1976)." (Emphasis supplied.) Gazaway v. Brackett, 241 Ga. 127, 128, 129 ( 244 S.E.2d 238) (1978).

In the previous habeas corpus order, the trial judge apparently based his award of custody to the grandmother on "the best interest and welfare of the children," although he made no express finding that both parents had lost the right to custody by means of the existence of one or more of the conditions specified in Code §§ 74-108, 74-109, or 74-110, or were unfit. See Conroy v. Jones, 238 Ga. 321, supra, p. 322 and cits. Whether or not the previous award of custody was authorized by the evidence, however, it was not appealed, hence was res judicata as to custody in the maternal grandmother at the time of the bringing of the present habeas corpus action.

2. "Where a third party has been awarded permanent custody of a child, a parent may obtain custody as in Robinson v. Ashmore, [ 232 Ga. 498 ( 207 S.E.2d 484) (1974)] ... by showing a change of conditions affecting the welfare of the child..." Gazaway v. Brackett, 241 Ga. 127, supra, p. 129. As was found by the trial court, the primary change of condition demonstrated by the appellant is that he has married his present wife with whom he had been living for some time previously. The appellant enumerates as error the trial court's consideration of the evidence adduced at the previous habeas corpus hearing, citing the cases of Fryer v. Stynchcombe, 228 Ga. 576 ( 186 S.E.2d 885) (1972); Altman v. Fla.-Ga. Tractor Co., 217 Ga. 292 (3)( 122 S.E.2d 88) (1961); Carten v. Loveless, 192 Ga. 715 (1) ( 16 S.E.2d 711) (1941); Akins v. Beaver, 98 Ga. App. 472 ( 106 S.E.2d 91) (1958). In the present case, unlike any of the cases cited above, it is essential to consider the previous order and findings of fact in order to determine whether there has been a change of conditions, etc. Furthermore, the trial court did not rely directly or exclusively on the evidence of conditions adduced on the former hearing, but found that the testimony in the two hearings was very similar, that the hearings were held within a year of each other, that the testimony in the two hearings was therefore inextricably intertwined, and that the primary changed condition was not one which would affect the children's welfare favorably. Consideration of the former order under these circumstances was not error.

3. Our review of the evidence of conditions affecting the welfare of the children satisfies us that the award continuing their custody in their maternal grandmother was authorized by reasonable evidence, hence is affirmed.

Judgment affirmed. All the Justices concur.