Hollingsworth v. Peck

226 Ga. 95 (1970)

172 S.E.2d 839

HOLLINGSWORTH v. PECK.

25575.

Supreme Court of Georgia.

Submitted January 13, 1970.

Decided February 5, 1970.

John W. Hendrix, for appellant.

Downing, McAleer & Gaskin, Frank O. Downing, James Edward McAleer, for appellee.

ALMAND, Chief Justice.

This appeal is from an award of custody of a minor child, a girl, to the mother in a habeas corpus proceeding. In her petition for the writ she alleged that by virtue of a final decree in Chatham Superior Court *96 she was on February 14, 1963, awarded the custody of Deborah Hollingsworth with the right of visitation by the defendant father. That pursuant to the decree the father had possession of the daughter during the school summer vacation period in 1969, but refused to return her to the custody of petitioner at the end of the vacation period.

In his response he admitted having the custody of the child. He set up that the decree giving the mother custody provided that she "shall not be removed from the State of Georgia nor shall be taken by either party to this agreement from beyond the limits of the State of Georgia for a period in excess of one month at the time without the written consent of both parties." He alleged that the mother had remarried and was living in Texas and if custody of the child was awarded to her it would take the child beyond the limits of the State. He prayed that custody be awarded to him.

After a hearing, the writ was granted, and custody was awarded to the mother. The appeal is from this order. Held:

The evidence before the trial judge did not demand a finding in favor of the appellant. As to the right of the mother to remove the residence of the child outside the State notwithstanding the provision in the decree prohibiting it, see Evans v. Allen, 212 Ga. 193 (91 SE2d 518), and Connell v. Connell, 222 Ga. 765 (3) (152 SE2d 567).

Judgment affirmed. All the Justices concur.