Glover v. Sink

195 S.E.2d 443, 230 Ga. 81, 1973 Ga. LEXIS 818

• Court: Supreme Court of Georgia
• Decided: January 22, 1973
• Docket: 27559
• Status: Published

Opinions

Per curiam.

The appeal here is from a judgment of the superior court entered in a habeas corpus proceeding awarding custody of the minor child of the appellant-mother to the plaintiff, the paternal grandmother of the child. The plaintiffs complaint was based on a previous award of custody entered by the Circuit Court of Montgomery County, Maryland, in a divorce proceeding. That decree awarded custody of the child "temporarily... for a period of one year from the date of this decree and thereafter until further order of this court” to the parents of the plaintiff therein, to wit, Arthur K. Sink and Linda O. Sink, together with reasonable rights of visitation to the mother. It appears that the mother had custody of the child in Glynn County, Georgia, pursuant to the exercise of her rights of visitation and refused to return the same to the plaintiff, who then brought this proceeding to regain custody. The appellant defended on the ground that since the entry of the decree there had been such a change in conditions that the welfare of the child would best be served by awarding the custody of the child to her. The trial court ruled that the Maryland decree was a mere temporary order not subject to modification on account of change in conditions and refused to hear evidence as to any change in conditions. Held:

Pretermitting any question as to whether Arthur K. Sink is a necessary party plaintiff to this proceeding, no evidence as to the Maryland law was introduced and the presumption is, therefore, that it is the same as Georgia law. Ferster v. Ferster, 220 Ga. 319, 322 (138 SE2d 674). In this state, an attempt by the trial court to retain jurisdiction over the question of custody of a child, is ineffectual to prevent a decree awarding its custody from becoming final. Such an order is a final adjudication as to the custody of the child based on the facts as they existed at the time it was entered. Barrentine v. Barrentine, 210 Ga. 749 (82 SE2d 857). While such a decree of a court of a sister state must be given effect by the courts of this state, under the mandate of the Full Faith and Credit Clause of the U. S. Constitution, it is, nevertheless, the duty of the trial court, when the issues are presented to it, to determine whether there has been a change in conditions subsequent to the entry of the previous decree which adversely affects the welfare of the child, and to determine, based on the present conditions as shown by the evidence, whether the best interests of the child dictate a change in custody. Milner v. Gatlin, 139 Ga. 109 (76 SE 860); Woodland v. Woodland, 153 Ga. 202 (1) (111 SE 673); Peeples v. Newman, 209 Ga. 53 (1) (70 SE2d 749); Ottinger v. Pelt, 217 Ga. 758 (2) (125 SE2d 52); Belden v. Strickland, 218 Ga. 105 (126 SE2d 670); Bowen v. Bowen, 223 Ga. 800 (1) (158 SE2d 233). It follows that the trial court erred in refusing to hear evidence as to a change in condition and in refusing to enter an award of custody based upon a consideration of such evidence.

Argued November 14,1972 Decided January 22, 1973. Thomas J. Lee, for appellant.

Judgment reversed.

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