Opinion
21207.
SUBMITTED APRIL 10, 1961.
DECIDED MAY 9, 1961.
Habeas corpus; custody of children. Clayton Superior Court. Before Judge Banke.
Wm. S. Shelfer, Haas, Dunaway, Shelfer Haas, for plaintiff in error.
Lee Hutcheson, contra.
Under the evidence adduced on the trial, the court did not err in awarding to their mother the children who were the subject of the proceedings.
SUBMITTED APRIL 10, 1961 — DECIDED MAY 9, 1961.
This habeas corpus proceeding was brought by Aurice Wallace Livingston against Reverend Donald D. Forrester, under an allegation of illegal detention of her minor children, Christine and Pamela.
The petitioner and the father of the two children whose custody is at issue were divorced in January 1955, and the petitioner was awarded custody of Christine, while the father was awarded custody of Pamela. The petitioner, who was then twenty years old, traveled to Chicago, Illinois, where she met Howard Radke, with whom she traveled to Detroit, Michigan, registered at a motel, and had immoral relations. She obtained an apartment in Chicago where she lived with the man mentioned above. Mrs. Livingston returned to Atlanta and took her daughter to Chicago to live with her. On March 19, 1955, the petitioner gave her former husband the custody of Christine. In April, 1955, the petitioner married her present husband, with whom she now lives in Berkley, Michigan, with their three children. In March, 1956, an attempt by the petitioner to recover custody of the children by showing a change of conditions was unsuccessful.
The father of the two children died testate on December 31, 1960, appointing the respondent guardian of the children by the terms of his will. On January 4, 1961, the respondent was appointed natural guardian of Christine and Pamela by an order of the court of ordinary.
The respondent was a close personal friend of the children's father as well as the minister of the First Christian Church, to which the father of the children had belonged. He and his wife desired custody of the children, and were in a position to care for them. There was testimony from several witnesses that the respondent maintained a Christian home, and that he would be a fit custodian of the children.
The trial judge, after hearing the evidence, entered an order awarding the children to their natural mother, and the respondent excepted to this ruling.
1. The respondent contends that he is legally entitled to have the children placed in his custody by virtue of the fact that by their father's will he was nominated their guardian, was duly appointed by the ordinary, and qualified in regular order for the trust. This contention is without merit. Taylor v. Jeter, 33 Ga. 195 (3) (81 Am. Dec. 202); Raines v. Harris, 150 Ga. 103 ( 102 S.E. 827); Landrum v. Landrum, 159 Ga. 324 ( 125 S.E. 832, 38 A.L.R. 217).
2. The evidence adduced on the trial showed, without contradiction, that the plaintiff was the mother of the children and the person having the legal right to their custody. The evidence, properly construed, was in conflict as to the plaintiff's fitness to rear the children who were the subject of the proceedings. There was evidence of grave misconduct on her part when she was a divorcee. She was apparently alone and without domestic ties to restrain her. But during the lapse of six years since the commission of the immoral acts, the plaintiff had married and become the mother of three more children, and had with her husband established a home. We are aware of the rule embodied in Code § 38-118 as to the continuance of a mental state once proved to exist. In Anderson v. Blythe, 54 Ga. 507, 508, is the observation: "The doctrine that a state of things once existing is presumed to continue until a change or some adequate cause of change appears, or until a presumption of change arises out of the nature of the subject, is an element of universal law."
Here the circumstances which evidently influenced the plaintiff's behavior six years before had changed substantially when the trial was held. Thus, there was no presumption that the petitioner's character and conduct six years previously existed at the time of trial. Therefore, we are not prepared to say that the trial judge was not in the exercise of the discretion vested in him to award the custody of the children to the plaintiff.
Judgment affirmed. All the Justices concur.