Attaway v. Attaway, 22 S.E.2d 50 (Ga. 1942). · Go Syfert
Attaway v. Attaway, 22 S.E.2d 50 (Ga. 1942). Cases Citing This Book View Copy Cite
20 citation events across 2 distinct courts.
Strongest positive: Chelena v. Chelena (ga, 1972-10-23)
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1948 1987 2026
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discussed Cited "see" Chelena v. Chelena (2×)
Ga. · 1972 · signal: see · confidence high
See Attaway v. Attaway, 194 Ga. 448 ( 22 SE2d 50 ); Handley v. Handley, 204 Ga. 57, 59 ( 48 SE2d 827 ); Treadwell v. Treadwell, 209 Ga. 436 ( 73 SE2d 94 ); Gaughf v. Gaughf, 214 Ga. 483 ( 105 SE2d 314 ); Hobby v. Eubanks, 224 Ga. 51 (1) ( 159 SE2d 701 ); Durden v. Durden, 224 Ga. 417 (4) ( 162 SE2d 385 ); Tyree v. Jackson, 226 Ga. 690, 695 ( 177 SE2d 160 ).
ATTAWAY Et Al.
v.
ATTAWAY
14244..
Supreme Court of Georgia.
Sep 15, 1942.
22 S.E.2d 50
J. Roy Rowland and Emory L. Rowland , for plaintiffs in error. C. S. Claxton , contra.
Bud.
Cited by 11 opinions  |  Published
Bud, Chief Justice.

This is a habeas-corpus case brought by the mother of a minor child. The defendants are the child’s father and the father’s parents. The father and mother of the child were divorced a short time before the present proceeding was instituted. In her petition for divorce the wife alleged “That the defendant and his parents are financially able to support the child, and she [the plaintiff] has no objection to the custody of the child being awarded to the defendant, she being unable to support the child and care for it at this time.” This allegation was stricken by amendment before the divorce decree, and there was no award of custody made in that proceeding, although at that time and since then the child was in the custody of the defendants.

The judgment here excepted to awarded the child to the plaintiff. It was entered after the judge had heard evidence as to the fitness of all the parties who claimed custody. “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 ease, 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.” Code, § 74-107. “While formerly the father was entitled to the custody of his children during their minority, now in all[*449] eases involving the custody of any minor child between parents there is no prima facie right to the custody of such child in the father; but the court having the issue of custody before it may exercise its sound discretion, taking into consideration all the circumstances of the case in deciding to which of the parents the custody of the child shall be awarded, it being the duty of the court in exercising such discretion to determine solely what is to the best interest of the child.” Lockhart v. Lockhart, 173 Ga. 846 (162 S. E. 129).

The plaintiff in error contends, however, that the foregoing principles do not here apply, because in her original petition the wife had in effect relinquished her right to custody. This contention can not be sustained. At most the statement in her petition, subsequently withdrawn by amendment, was merely a voluntary expression on her part, and referred only to her inability to care for the child “at this time.” Her apparent willingness to an award at that time was not acted upon, because no award was made. But even if it had been made, she would not be subsequently barred from showing “a change of circumstances affecting the welfare of the child,” and thereby obtaining custody. Shields v. Bodenhamer, 180 Ga. 122 (178 S. E. 294); State v. Coggins, 181 Ga. 17 (181 S. E. 145). Hnder these principles the judge was authorized, in his discretion, to make the award as he did. See Chapin v. Cummings, 191 Ga. 408 (12 S. E. 2d, 312), and cit.

Judgment affirmed.

All the Justices concur.