Lodge v. Lodge

198 S.E.2d 861, 230 Ga. 652, 1973 Ga. LEXIS 1018

• Court: Supreme Court of Georgia
• Decided: May 31, 1973
• Docket: 27881
• Status: Published

Opinion

Jordan, Justice.

In this habeas corpus proceeding between divorced parents involving the custody of a 10-year-old daughter the respondent father appeals an order awarding the child to the mother based on a finding of a change in condition.

The father was present at the hearing but did not testify. The mother testified, but she was not cross examined. The habeas corpus judge interviewed the child out of the presence of the parents, and the record is silent as to any objection to this procedure. He ascertained that she preferred to live with her mother.

The undisputed evidence discloses that although the father had legal custody of the child under a California decree he had thereafter voluntarily relinquished actual custody to the mother, and that the child was living with the mother when he went to the school she was attending, picked her up, and refused to return her to her mother.

The voluntary surrender by a parent of the custody of a child is a change in condition which will authorize a court to consider anew the issue of custody. Wilt v. Wilt, 229 Ga. 658 (193 SE2d 833); Askew v. Askew, 212 Ga. 46 (90 SE2d 409); Martin v. Hendon, 224 Ga. 221 (160 SE2d 893). It is also well established that giving full faith and credit to a custody decree of a sister state does-not bar a court of this state from considering and changing custody based on a change of condition subsequent to the decree. Peeples v. Newman, 209 Ga. 53 (1) (70 SE2d 749).

Submitted May 14, 1973 Decided May 31, 1973. Saul & Blount, Percy J. Blount, for appellant.

Having carefully considered the record in view of the contentions of the respondent father we are of the opinion that the appeal is without merit.

Judgment affirmed.

All the Justices concur.