WOOD v. McGEE

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Docket Number

33444.

Attorney(S)

John Terry Brown, for appellants. Fred W. Minter, for appellees.

Judges

MARSHALL, Justice.

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Smart Summary

Factual and Procedural Background

The parties divorced in 1971; the divorce decree awarded custody of the couple's minor son to the mother. Also in 1971 the Juvenile Court of Gwinnett County found the child to be deprived and awarded custody to the child's aunt, Evelyn Dodd, in an order that expired by operation of law in 1973. In 1977 the mother filed a habeas corpus action against Dodd and Mr. and Mrs. Wood, alleging Dodd had illegally turned the child over to the Woods, who had possession. The mother alleged she was fit and proper to have custody and sought restoration of custody. Defendants answered alleging abandonment by the mother, acquiescence in defendants' custody since 1971, cruel treatment, and moral unfitness; they also filed a counterclaim seeking termination of the mother's parental rights and custody for the Woods, alleging the Woods had cared for the child for six years and the mother had made no effort to visit or claim him. The trial judge ruled that, upon expiration of the juvenile court order, the mother became rightful custodian pursuant to the divorce decree and held he had no authority to determine the mother's fitness because original exclusive jurisdiction lay in the juvenile court. Defendants appealed.

Legal Issues Presented

Whether the trial court, in a habeas corpus proceeding involving custody of a child, must return custody to the parent under a prior divorce decree upon expiration of a juvenile court order or whether the trial court may exercise discretion to determine custody under Code Ann. § 50-121.
Whether the trial court lacked authority to determine the fitness of a parent for custody when, in the trial court's view, original exclusive jurisdiction to determine parental fitness rested in the juvenile court.

Arguments of the Parties

Petitioner's Arguments

The mother alleged she was a fit and proper party to have custody of the child and prayed that custody be restored to her.

Defendants' Arguments

Defendants alleged the mother had abandoned the child shortly after birth and had acquiesced in defendants' custody since 1971.
They asserted the mother had been guilty of cruel treatment toward the child and was morally unfit to have custody.
By counterclaim, defendants alleged Dodd had transferred custody to the Woods, who for six years had supported, maintained, cared for and loved the child while the petitioner made no attempt to visit, contact, or claim him, and they sought termination of the petitioner's parental rights and custody for the Woods.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
White v. Bryan, 236 Ga. 349 (223 S.E.2d 710) (1976) and cits.	Support for the proposition that a court in habeas corpus may exercise discretion in awarding custody and may consider parental fitness.	The Supreme Court cited the case in directing the trial court to exercise legal discretion in determining whether the mother is unfit or has forfeited parental rights, reversing the trial court's contrary view.

Court's Reasoning and Analysis

The Court examined the statutory provision (Code Ann. § 50-121, as amended) that authorizes a court, in writs of habeas corpus concerning a child, to exercise discretion in awarding custody and to give custody to a third person. It rejected the trial judge's conclusion that he had no discretion because the juvenile court had original jurisdiction to determine parental fitness. Finding the trial court's judgment to be inconsistent with the statutory grant of discretion, the Supreme Court held the trial judge should have exercised legal discretion to determine whether the mother was unfit or had otherwise forfeited her parental rights. The Court therefore reversed and remanded with direction that the trial court exercise that discretion, citing White v. Bryan and related authority.

Holding and Implications

Judgment reversed and remanded with direction.

Direct effect: The trial court's judgment granting the writ without exercising discretion was reversed; the trial court is directed to exercise legal discretion under Code Ann. § 50-121 to determine whether the mother is unfit or has forfeited parental rights and then to rule on custody. The opinion does not announce any broader new precedent beyond application of the statute and cited authorities.

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WOOD et al. v. McGEE et al.

MARSHALL, Justice.

This is a child custody case. The parties were divorced in 1971 and the custody of the couple's minor son was awarded to the mother in the divorce decree. Also in 1971, the Juvenile Court of Gwinnett County found the child to be deprived, and awarded custody of him to his aunt, defendant Evelyn Dodd, in an order which expired by operation of law in 1973. Code Ann. § 24-A-2701 (c) (Ga. L. 1971, pp. 709, 783; 1974, pp. 1126, 1131).

In 1977, the mother brought the present habeas corpus action against Ms. Dodd and Mr. and Mrs. Wood, alleging that defendant Dodd had illegally turned the child over for adoption to defendants Woods, who then had possession of the child. The mother alleged that she, the mother, was a fit and proper party to have custody of the child, and prayed that custody be restored to her.

The defendants filed an answer, alleging in part that the petitioner had lost all parental rights to the child by abandoning him shortly after his birth, acquiescing totally in the defendants' custody since 1971, and also because the petitioner had been guilty of cruel treatment toward the child. The defendants' answer further alleged that the petitioner is morally unfit to have custody of the minor child and that the welfare and happiness of the child will best be served if defendants Mr. and Mrs. Wood retain custody. Also filed was a counterclaim, alleging that, shortly following the juvenile court's award of custody to defendant Dodd, Ms. Dodd had transferred custody to defendants Mr. and Mrs. Wood, who for six years had supported, maintained, cared for and loved the child, the petitioner having made no attempt to visit, contact or claim him. The counterclaim prayed for the termination of the petitioner's parental rights and the grant of temporary and permanent custody of the child to defendants Woods.

The trial judge held that, upon the expiration of the two-year juvenile court order, the petitioner became the rightful custodian pursuant to the provisions of the divorce decree. He further held that the original exclusive jurisdiction to determine the fitness of a parent for a child where there is no divorce action pending is in the juvenile court, and, "this court having no authority to determine the fitness of the mother for the custody of the child, it is binding upon this court to grant the writ of habeas corpus."

From this judgment, the defendants appeal. Held:

Code Ann. § 50-121 (as amended, Ga. L. 1976, pp. 1050, 1052) provides in part as follows: "In all writs of habeas corpus sued out on account of the detention of a wife or child, the court, on hearing all the facts, may exercise his discretion as to [to] whom the custody of such wife or child shall be given, and shall have power to give such custody of a child to a third person."

The judgment of the trial judge states that he had no discretion in ruling on this question. We disagree. The judgment is reversed and remanded to the trial court with direction that he exercise a legal discretion in ruling whether or not the mother is an unfit parent or has otherwise forfeited her parental rights to the child. See White v. Bryan, 236 Ga. 349 ( 223 S.E.2d 710) (1976) and cits.

Judgment reversed and remanded with direction. All the Justices concur.