Elliott v. Elliott

182 S.E. 845, 181 Ga. 545, 1935 Ga. LEXIS 159

• Court: Supreme Court of Georgia
• Decided: December 16, 1935
• Docket: No. 10942
• Status: Published

Opinion

Russell, Chief Justice.

1. On habeas corpus by a father to recover custody of his minor child living with the mother in Georgia, predicated upon a decree of a Michigan court dissolving his marriage and awarding the child to him, the full-faith-and-eredit clause of the Federal constitution did not preclude the Georgia court from declaring the Michigan decree void for lack of jurisdiction of the child. Boyd v. Glass, 34 Ga. 253 (89 Am. D. 252); Milner v. Gatlin, 139 Ga. 109 (76 S. E. 860). See also Mobley v. Mobley, 9 Ga. 247.

2. A father’s leaving his wife and minor child in Georgia to obtain employment for himself in Michigan, and his failing to provide for them, except sending them about $12 for about two 'years, held to authorize a finding that the father had voluntarily relinquished his parental authority over the child to the mother, under the Code of 1933, § 79-404, thereby rendering the domicile of 'the child that of the mother, so that a Michigan divorce decree awarding him the custody of the child was void for lack of jurisdiction, even though the mother filed an answer in the divorce proceeding, asking that she be awarded the child. Upon such finding the court was authorized to determine the habeas-eorpus case without regard to the foreign judgment, and solely in view of the welfare of the child as an original proposition.

3. Under the evidence the court did not err in finding that the interest of the child would be better promoted by awarding the custody to the mother, and in denying the writ of habeas corpus.

Judgment affirmed.

All'the Justices concur. Homer Watkins, for plaintiff. C. B. McGwi’ity, for defendant.