Proctor v. Proctor

139 S.E. 531, 164 Ga. 721, 1927 Ga. LEXIS 263

• Court: Supreme Court of Georgia
• Decided: September 9, 1927
• Docket: No. 5650
• Status: Published

Opinion

Atkinson, J.

1. Tlie right to control his child until it attains majority is ordinarily in the father. This right of the father may however be lost “by the failure of the father to provide necessaries for his child, or his abandonment of his family.” Civil Code (1910), § 3021.

2. “In all cases where the custody of any minor child or children is involved between the parents, there shall be no prima facie right to the custody of such child or children in the father, but the court hearing such issue of custody may exercise its sound discretion, taking into consideration all the circumstances of the case, as to whose custody such child or children shall be awarded, the duty of the court being in all such cases in exercising such discretion to look to and determine solely what is for the best interest of the child or children, and what will best promote their welfare and happiness, and make award accordingly.” Acts 1913, p. 110; Civil Code (Park’s 1914), § 3022(a); (Michie’s 1926) § 3022(1).

(а) Under the pleadings and the evidence in the habeas-corpus proceeding instituted in this case by a father against a mother for custody of a girl child under three years of age, in which the maternal grandfather intervened, the judge did not err, under application of the principles stated above, in awarding temporary custody of the child to her grandfather. Turner v. Turner, 150 Ga. 191 (103 S. E. 413); McCallum v. McCallum, 157 Ga. 795 (2) (122 S. E. 231).

(б) The decisions in the eases of Sloan v. Jones, 130 Ga. 836 (62 S. E. 21), and Miller v. Wallace, 76 Ga. 479 (2 Am. St. R. 48), cited by the plaintiff in error, were rendered prior to the act of 1913, supra.

Parent and Child, 29 Cyc. p. 1588, n. 49; p. 1589, n. 51; p. 1594, n. 85; p. 1595, n. 87; p. 1597, n. 5, 6; p. 1604, n. 72.

Judgment affirmed.

All the Justices concur.