Bennett v. Clemens

Supreme Court of Georgia

Bennett v. Clemens

196 S.E.2d 842, 230 Ga. 317, 1973 Ga. LEXIS 894

CourtSupreme Court of Georgia

DecidedMarch 8, 1973

Docket27725

StatusPublished

Cited by8 cases

This text of 196 S.E.2d 842 (Bennett v. Clemens) is published on Counsel Stack Legal Research, covering Supreme Court of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Bennett v. Clemens, 196 S.E.2d 842, 230 Ga. 317, 1973 Ga. LEXIS 894 (Ga. 1973).

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Opinions

Jordan, Justice.

1. Enumeration one contends that the court erred in "not determining that the grandparents had shown no right to have custody of the child and therefore erred in not dismissing this petition.” The record before us shows no motion to dismiss the petition nor any other effort in the trial court to question the standing of the petitioners to bring the habeas corpus action. This enumeration is without merit. As to such standing by the petitioners, see Harper v. Ballensigner, 226 Ga. 828 (1) (177 SE2d 693).

[319]*3192. The other enumerations complain of the award of custody to the grandparents instead of retaining it in the mother or awarding same to the natural father. The father, while a witness, was not a party in the trial court nor one of the appellants in this court. The only question here is whether the trial court under the evidence presented abused its discretion concerning the welfare of the child in awarding custody to the grandparents.

The evidence is voluminous and, while conflicting in some aspects, authorized the findings that the mother, after divorcing her husband, moved to Atlanta and lived for several years in different locations with the child, worked for a so-called "underground” newspaper, that she had been arrested for possession of marijuana and on a plea of nolo contendere was given a two year sentence on probation, that in the fall of 1970 she left Atlanta to attend the funeral of her mother in Delaware, leaving the child with 4 female friends, one of whom was a defendant, and thereafter went to San Francisco where she has since lived while pursuing her vocation as a writer and poet; that the female friends with whom she left the child smoked "pot” on occasions, engaged in sexual acts with men and with each other in the presence of the child and otherwise taught the child about "the gay life.”

In a proceeding involving the custody of a child, a change in the circumstances of the party having legal custody of the child which materially affects the child’s welfare, will authorize the court in the exercise of a sound discretion to protect the welfare of the child. Under the facts as shown by this record we cannot say that the trial court abused that discretion by awarding custody of the child to the petitioners.

Judgment affirmed.

All the Justices concur, except Hawes and Gunter, JJ., who dissent.

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Jordan, Justice.

1. Enumeration one contends that the court erred in "not determining that the grandparents had shown no right to have custody of the child and therefore erred in not dismissing this petition.” The record before us shows no motion to dismiss the petition nor any other effort in the trial court to question the standing of the petitioners to bring the habeas corpus action. This enumeration is without merit. As to such standing by the petitioners, see Harper v. Ballensigner, 226 Ga. 828 (1) (177 SE2d 693).

[319]*3192. The other enumerations complain of the award of custody to the grandparents instead of retaining it in the mother or awarding same to the natural father. The father, while a witness, was not a party in the trial court nor one of the appellants in this court. The only question here is whether the trial court under the evidence presented abused its discretion concerning the welfare of the child in awarding custody to the grandparents.

The evidence is voluminous and, while conflicting in some aspects, authorized the findings that the mother, after divorcing her husband, moved to Atlanta and lived for several years in different locations with the child, worked for a so-called "underground” newspaper, that she had been arrested for possession of marijuana and on a plea of nolo contendere was given a two year sentence on probation, that in the fall of 1970 she left Atlanta to attend the funeral of her mother in Delaware, leaving the child with 4 female friends, one of whom was a defendant, and thereafter went to San Francisco where she has since lived while pursuing her vocation as a writer and poet; that the female friends with whom she left the child smoked "pot” on occasions, engaged in sexual acts with men and with each other in the presence of the child and otherwise taught the child about "the gay life.”

In a proceeding involving the custody of a child, a change in the circumstances of the party having legal custody of the child which materially affects the child’s welfare, will authorize the court in the exercise of a sound discretion to protect the welfare of the child. Under the facts as shown by this record we cannot say that the trial court abused that discretion by awarding custody of the child to the petitioners.

Judgment affirmed.

All the Justices concur, except Hawes and Gunter, JJ., who dissent.

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196 S.E.2d 842, 230 Ga. 317, 1973 Ga. LEXIS 894, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bennett-v-clemens-ga-1973.

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