Opinion
19613.
ARGUED FEBRUARY 12, 1957.
DECIDED MARCH 12, 1957.
Custody of child. Before Judge Shaw. Fulton Superior Court. November 15, 1956.
Swift Tyler, John Tyler, for plaintiff in error.
Russell G. Turner, Sr., contra.
No abuse of discretion is shown in the award of custody made by the juvenile court judge, and the judge of the superior court did not err in overruling the certiorari.
ARGUED FEBRUARY 12, 1957 — DECIDED MARCH 12, 1957.
Mrs. Helen Jones Matthews filed a petition for divorce against Thomas Edwin Matthews in the Superior Court of Fulton County. On the hearing on the rule nisi, the trial judge referred the question of the custody of the two minor (legally adopted) children of the parties to the Juvenile Court of Fulton County. An order was passed by the judge of the juvenile court, awarding custody. On certiorari this order was set aside, and the cause remanded to the juvenile court for another adjudication. On the second hearing, the judge of the juvenile court made the following award of custody: "It is hereby ordered that custody of the said David Aldine Matthews be, and the same is, hereby awarded to the father, Thomas Edwin Matthews. Be it further ordered that custody of the said Marianne Victoria Matthews be, and the same is, hereby awarded to the mother, Mrs. Helen Jones Matthews."
Thomas Edwin Matthews filed his petition for a writ of certiorari in the superior court to review this judgment, in which he asserted that the award of custody as to Marianne Victoria Matthews was contrary to law, contrary to the evidence, against the weight of the evidence, without evidence to support it, and a gross abuse of discretion by the judge of the juvenile court. The petition for a writ of certiorari was sanctioned, after service and answer. The certiorari was heard and overruled.
It was stipulated by the parties that the testimony at the first hearing in the juvenile court should be considered on the second hearing, and some additional testimony was introduced at the second hearing. At the time of the first hearing, David Matthews was 17 years of age and Marianne Matthews was 9. They were both legally adopted in infancy, and are not otherwise related. Prior to the divorce action, Marianne Matthews was placed by the parents in the Thornwell Home at Clinton, South Carolina, an orphanage maintained by the Presbyterian Church, and she has been cared for in that institution without charge to the parents since that time. David Matthews has resided with his father since the separation of the parents. The mother has been an invalid since the girl was about six months old, and she is unable to walk without braces.
The mother testified that, while the parties were living together, she had no control over the boy, and while the mother was in an extremely weakened physical condition, the boy would make the girl do anything he wanted her to do, and if she did not do what he wanted, he would take her in his room and push his bed up against the door, and on such occasions would first disconnect the telephone so that the mother could not call for help. The maid who had worked for the parties testified to the same conduct on the part of the boy toward the girl, and stated that, when the boy locked the girl in his room, she would cry and ask to be let out of the room. The witness stated that the boy would disconnect the telephone on these occasions.
It appeared from the evidence that the boy was under probation in the juvenile court by reason of a charge of committing twenty-three burglaries. On the second hearing, the father testified that the boy then had a part-time job, and had not been in any trouble since the previous hearing.
There was no evidence of moral unfitness of either of the parents, and it appeared that the father had tried to provide and care for his family prior to the divorce action. Because of heavy medical expenses due to the mother's illness, her family had contributed to the payment of these expenses.
The father testified that he and the boy have an apartment in a duplex, and if custody of the girl should be awarded to him, he would make provision for someone to supervise her from the time she leaves school in the afternoon until he returns from work, although his mother (who is 74) lives about a block from his residence and she would be able to supervise the girl. After the payment of alimony, the father has an income of $161 per month.
The mother testified that the girl is well cared for at the Thornwell Home. She stated that she would expect to leave her there at the present time, under her supervision, if custody should be awarded to her.
It is the contention of the father in this court that, while the order of the Judge of the Juvenile Court of Fulton County awarded the custody of the girl to her mother, the testimony showed that the child was residing in the Thornwell Home at Clinton, South Carolina, and that the award of custody to the mother was, in fact, an award of custody to a third person. It is insisted that no moral unfitness of the father is shown, and that in a contest between the father and a third person, he would be entitled to the custody of the child.
Under the law now in effect pertaining to juvenile courts (Ga. L. 1951, pp. 291-311; Code, Ann. Supp., Chapter 24-24), the juvenile court judge is given broad discretion and powers in the placement of children whose custody is the subject of controversy, when the question of custody has been transferred to the juvenile court by a superior court in a divorce action. In all such cases, however, the general law pertaining to the right of parents to have the custody of their children (unless they have forfeited their right in the manner provided by law) can not be disregarded by the judge of the juvenile court.
In the present case the award of custody of the minor daughter of the parties was to the mother. From the evidence it appears that the mother is physically disabled and can not care for the child personally, and her custody will be, in effect, a supervisory one at the present time, with the child residing in a church orphanage. There is evidence that the child is being properly cared for, and that the mother is supervising her care. While there is no evidence of any physical or moral unfitness of the father to have custody of both of the children, there is evidence from which the juvenile judge was authorized to find that it is not to the best interest of the daughter to be in the same home with the son, who is presently in the custody of the father.
The testimony in the present case reveals facts and circumstances most unusual in character, and different from other cases decided by this court. In view of the nature and character of the evidence, it is not shown that it was error for the judge of the superior court to overrule the certiorari.
Judgment affirmed. All the Justices concur.