Spires v. Lance

306 S.E.2d 317, 167 Ga. App. 331, 1983 Ga. App. LEXIS 2449

• Court: Court of Appeals of Georgia
• Decided: June 17, 1983
• Docket: 66345
• Status: Published

Opinions

Shulman, Chief Judge.

This case involves a custody contest between a natural father and a stepfather after the death of the child’s mother. Appellant’s former wife had legal custody of their son at the time of her death. On the day after the child’s mother died, his stepfather, joined by the mother’s sister and brother-in-law, filed a petition in the Superior Court of Monroe County, seeking an award of custody to the stepfather. Appellant, the natural father, contested the petition and appeared for a hearing on his motion to dismiss based on jurisdictional grounds. Appellant argued that since he was the legal custodian of the child upon the death of the mother, and since he was a resident of Dodge County, any proceeding for a change of custody would have to be brought in Dodge County. That motion was denied and custody was awarded to the stepfather. We reverse.

1. “Upon the death of either parent, the survivor is entitled to custody of the child; provided, however, that the court, upon petition, may exercise discretion as to the custody of the child, looking solely to the child’s interest and welfare.” OCGA § 19-9-2 (Code Ann. § 74-106). “It is clear that when a parent having custody dies, legal custody reverts to the other parent unless he has lost his parental rights as provided under [OCGA § 19-7-1 (Code Ann. § 74-108)] or is shown to be presently unfit. [Cits.]” Derby v. Kim, 238 Ga. 429 (233 SE2d 156).

As we understand the Supreme Court’s holding in Derby v. Kim, supra, the surviving parent becomes the legal custodian of the child at the moment of the custodial parent’s death unless there has been a prior termination of the survivor’s parental rights. The surviving parent whose parental rights have not been previously terminated is entitled to custody until a court of competent jurisdiction rules otherwise as provided by law. See Wright v. Hanson, 248 Ga. 523 (2) (283 SE2d 882). There is nothing in the record in this case to indicate that appellant’s parental rights were terminated by a court of competent jurisdiction prior to the death of his former wife. It necessarily follows that, at the time the present action for custody was filed, appellant was the custodial parent of his son.

Decided June 17, 1983 Rehearing denied July 7, 1983 Denmark Groover, Jr., for appellant. W. Franklin Freeman, Jr., Kenneth R. Waldrep, W. Ashley Hawkins, for appellees.

2. Having determined that appellant was the custodial parent of his son immediately following the mother’s death, the resolution of the jurisdictional issue becomes simple. The Supreme Court has held in a line of cases from Matthews v. Matthews, 238 Ga. 201 (232 SE2d 76), to Canning v. Evans, 250 Ga. 85 (295 SE2d 741), that actions in which a change of custody is sought must be litigated in the county of the custodial parent’s residence. That was exactly the point made in appellant’s motion to dismiss, and the trial court erred in denying that motion. It follows that everything that occurred subsequent to the denial of appellant’s order was nugatory. The trial court lacked jurisdiction to award custody of appellant’s child to anyone. Appellant is entitled to litigate custody questions concerning his son in Dodge County, appellant’s residence.

3. Having ruled that the trial court lacked jurisdiction, it is not necessary to address appellant’s second enumeration of error dealing with the merits of the award of custody.

Judgment reversed.

Been, P. J., Quillian, P. J., Banke, Carley, Sognier and Pope, JJ., concur. Birdsong, J., dissents. McMurray, P. J., concurs in the judgment of the dissent only.