Campbell v. Chapman

Supreme Court of Georgia

Campbell v. Chapman

233 S.E.2d 155, 238 Ga. 427, 1977 Ga. LEXIS 1046

CourtSupreme Court of Georgia

DecidedFebruary 9, 1977

Docket31899, 31900

StatusPublished

Cited by8 cases

This text of 233 S.E.2d 155 (Campbell v. Chapman) 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.

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Campbell v. Chapman, 233 S.E.2d 155, 238 Ga. 427, 1977 Ga. LEXIS 1046 (Ga. 1977).

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Undercofler, Presiding Justice.

The mother, who had been awarded custody in an earlier divorce decree, was killed in an accident in which her daughter and her new husband, the child’s stepfather, were also involved. The child’s maternal grandmother sued the natural father for custody and the natural father brought a petition for habeas corpus against the stepfather. The maternal aunt and uncle then intervened in the grandmother’s suit against the natural father. The trial court consolidated both cases, determined that, the [428]*428natural father was unfit and that the grandmother was a proper custodian, and awarded her custody. The natural father, having lost in both cases brings these two appeals. We reverse.

Submitted January 25, 1977 — Decided February 9, 1977 Rehearing denied March 1, 1977. Stanley C. House, Hinton R. Pierce, for appellant. Allgood, Childs, Snelling & Brown, George B. Snelling, Jr., Andrew J. Kilpatrick, II, for appellees.

When the mother, the child’s legal custodian, died, the surviving parent, the father, acquired the prima facie right to the child, and unless that right had been lost as provided by law was entitled, to custody. Howell v. Gossett, 234 Ga. 145 (214 SE2d 882) (1975); Hendrix v. McClelland, 226 Ga. 107 (172 SE2d 663) (1970). The trial court found as a matter of fact that the natural father was unfit. The evidence presented, however, alleging unbalance during the breakup of his marriage to the mother was not relevant. In fact, the brother-in-law, with whom the Campbells had lived for over a year, stated: "He’s her father, but, well, he’s — I wouldn’t say he wasn’t fit to raise her, but it’s just times that he’s [a] little rash...” The father can not lose his legal right without proof of present unfitness. Shaddrix v. Womack, 231 Ga. 628 (203 SE2d 225) (1974); Heath v. Martin, 225 Ga. 181 (167 SE2d 153) (1969). No such evidence was submitted. Thus the trial court erred in finding the father unfit and in denying him custody.

Judgments reversed.

All the Justices concur, except Nichols, C. J., Jordan and Hall, JJ., who dissent.

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Undercofler, Presiding Justice.

The mother, who had been awarded custody in an earlier divorce decree, was killed in an accident in which her daughter and her new husband, the child’s stepfather, were also involved. The child’s maternal grandmother sued the natural father for custody and the natural father brought a petition for habeas corpus against the stepfather. The maternal aunt and uncle then intervened in the grandmother’s suit against the natural father. The trial court consolidated both cases, determined that, the [428]*428natural father was unfit and that the grandmother was a proper custodian, and awarded her custody. The natural father, having lost in both cases brings these two appeals. We reverse.

Submitted January 25, 1977 — Decided February 9, 1977 Rehearing denied March 1, 1977. Stanley C. House, Hinton R. Pierce, for appellant. Allgood, Childs, Snelling & Brown, George B. Snelling, Jr., Andrew J. Kilpatrick, II, for appellees.

When the mother, the child’s legal custodian, died, the surviving parent, the father, acquired the prima facie right to the child, and unless that right had been lost as provided by law was entitled, to custody. Howell v. Gossett, 234 Ga. 145 (214 SE2d 882) (1975); Hendrix v. McClelland, 226 Ga. 107 (172 SE2d 663) (1970). The trial court found as a matter of fact that the natural father was unfit. The evidence presented, however, alleging unbalance during the breakup of his marriage to the mother was not relevant. In fact, the brother-in-law, with whom the Campbells had lived for over a year, stated: "He’s her father, but, well, he’s — I wouldn’t say he wasn’t fit to raise her, but it’s just times that he’s [a] little rash...” The father can not lose his legal right without proof of present unfitness. Shaddrix v. Womack, 231 Ga. 628 (203 SE2d 225) (1974); Heath v. Martin, 225 Ga. 181 (167 SE2d 153) (1969). No such evidence was submitted. Thus the trial court erred in finding the father unfit and in denying him custody.

Judgments reversed.

All the Justices concur, except Nichols, C. J., Jordan and Hall, JJ., who dissent.

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233 S.E.2d 155, 238 Ga. 427, 1977 Ga. LEXIS 1046, Counsel Stack Legal Research, https://law.counselstack.com/opinion/campbell-v-chapman-ga-1977.

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