2020 Georgia Code
Title 19 - Domestic Relations
Chapter 9 - Child Custody Proceedings
Article 1 - General Provisions
§ 19-9-2. Right of Surviving Parent to Custody of Child; Discretion of Judge

Upon the death of either parent, the survivor is entitled to custody of the child; provided, however, that the judge, upon petition, may exercise discretion as to the custody of the child, looking solely to the child's best interest and welfare.

(Orig. Code 1863, § 1745; Code 1868, § 1785; Code 1873, § 1794; Code 1882, § 1794; Civil Code 1895, § 2503; Civil Code 1910, § 3022; Code 1933, § 74-106; Ga. L. 1979, p. 466, § 42; Ga. L. 1996, p. 412, § 2; Ga. L. 2007, p. 554, § 5/HB 369.)

- Ga. L. 2007, p. 554, § 1/HB 369, not codified by the General Assembly, provides: "The General Assembly of Georgia declares that it is the policy of this state to assure that minor children have frequent and continuing contact with parents who have shown the ability to act in the best interests of their children and to encourage parents to share in the rights and responsibilities of rearing their children after the parents have separated or dissolved their marriage or relationship."

Ga. L. 2007, p. 554, § 8/HB 369, not codified by the General Assembly, provides that the 2007 amendment shall apply to all child custody proceedings and modifications of child custody filed on or after January 1, 2008.

- For article, "The Child as a Party in Interest in Custody Proceedings," see 10 Ga. St. B.J. 577 (1974). For article criticizing parental rights doctrine and advocating best interests of child doctrine in parent-third party custody disputes, see 27 Emory L.J. 209 (1978). For article surveying developments in Georgia domestic relations law from mid-1980 through mid-1981, see 33 Mercer L. Rev. 109 (1981). For article, "Domestic Relations Law," see 53 Mercer L. Rev. 265 (2001). For annual survey on domestic relations law, see 64 Mercer L. Rev. 121 (2012). For note criticizing Quiner v. Quiner, 57 Cal. Rptr. 503 (Ct. App. 1967), holding abnormal religious convictions of mother were not sufficient grounds upon which to deny custody of child, see 17 J. of Pub. L. 193 (1968). For review of 1996 domestic relations legislation, see 13 Ga. St. U.L. Rev. 155 (1996). For comment on "Grandparents' Visitation Rights in Georgia," see 29 Emory L.J. 1083 (1980).

On death of custodial parent under divorce decree, right to custody automatically inures to surviving parent. Girtman v. Girtman, 191 Ga. 173, 11 S.E.2d 782 (1940); Raily v. Smith, 202 Ga. 185, 42 S.E.2d 491 (1947); Land v. Wrobel, 220 Ga. 260, 138 S.E.2d 315 (1964); Porter v. Johnson, 242 Ga. 188, 249 S.E.2d 608 (1978).

- Notwithstanding anything implied in O.C.G.A. § 19-9-2, concerning interests and welfare of the child, the court has no authority in the court's discretion to deprive surviving parent of custody after death of spouse, absent showing of abandonment, cruel treatment, termination of parental rights, unfitness, or other grounds authorized by law. Brant v. Bazemore, 159 Ga. App. 659, 284 S.E.2d 674 (1981).

- When mother of child is dead, father has prima facie right of custody, and in order to sustain contention that he has lost his parental power by reason of failure to provide necessaries for his child or by abandonment of his family, a clear and strong case must be made. Chambers v. Lee, 215 Ga. 629, 112 S.E.2d 614 (1960).

In determining whether parent or third parties should have custody of child, trial court was required by law to recognize that upon death of one parent, legal right to child automatically inures to surviving parent, and that parent was entitled to the child's custody absent showing that the surviving parent had lost parental rights in any one of the ways provided in O.C.G.A. § 19-7-1 or was an unfit person to have custody, which unfitness must be shown by strong and satisfactory proof. Peck v. Shierling, 222 Ga. 60, 148 S.E.2d 491 (1966), later appeal, 223 Ga. 1, 152 S.E.2d 868 (1967).

It is clear that when parent having custody dies, legal custody reverts to other parent unless the other parent has lost parental rights as provided under O.C.G.A. § 19-7-1, or was shown to be presently unfit. Porter v. Johnson, 242 Ga. 188, 249 S.E.2d 608 (1978).

Absent showing of abandonment, cruel treatment, termination of parental rights, unfitness, or other grounds authorized by law, trial court lacks discretion to deprive surviving parent of his or her child. Bryant v. Wigley, 246 Ga. 155, 269 S.E.2d 418 (1980).

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. Spires v. Lance, 167 Ga. App. 331, 306 S.E.2d 317 (1983).

- Discretion of judge must be exercised in favor of surviving parent who has legal right to custody of child, unless evidence shows that welfare and interest of child justify the judge in awarding custody to someone else. Hill v. Rivers, 200 Ga. 354, 37 S.E.2d 386 (1946); Sherrill v. Sherrill, 202 Ga. 288, 42 S.E.2d 921 (1947).

In every case where custody of minor children is involved, the law requires that court having jurisdiction shall exercise discretion in awarding custody. Waller v. Waller, 202 Ga. 535, 43 S.E.2d 535 (1947).

While judge is vested with discretion in determining to whom custody shall be given, such discretion should be governed by rules of law, and be exercised in favor of party having legal right, unless evidence shows that interest and welfare of child justify judge in awarding custody to another. Perkins v. Courson, 219 Ga. 611, 135 S.E.2d 388 (1964).

- Former husband, a resident of Mississippi who had disclaimed paternity in a divorce decree, did not become entitled to custody upon the mother's death in Georgia; nor could the mother unilaterally substitute her former husband as the child's legal custodian without the consent of the father. Thus, the child was a Georgia resident for purposes of a legitimation proceeding by the biological father. Hardy v. Arcemont, 213 Ga. App. 243, 444 S.E.2d 327 (1994).

- Statute gave court only limited discretion in custody dispute between parent and third party. Spitz v. Holland, 243 Ga. 9, 252 S.E.2d 406 (1979).

- Statute permitted trial court discretion to consider whether child had been abandoned or subjected to cruel treatment by surviving parent, or to suspend proceeding to enable juvenile court to consider termination of parental rights of survivor, or to consider whether surviving parent was shown by clear and satisfactory proof to be unfit to have custody of child, or to consider such other matters as may be authorized by statute, and discretion to suspend proceeding to enable another court to consider such matters as the court had jurisdiction to consider. Bryant v. Wigley, 246 Ga. 155, 269 S.E.2d 418 (1980).

- In exercising discretion, judge cannot disregard or impair acknowledged or established rights of any party; to do so, constitutes an abuse of discretion. Hill v. Rivers, 200 Ga. 354, 37 S.E.2d 386 (1946).

If either parent is a proper and suitable person and has not surrendered his or her parental right of custody, it is an abuse of discretion to award minor child to third parties over claim of such parent. Camp v. Bookman, 204 Ga. 670, 51 S.E.2d 391 (1949).

- In all cases when custody of minor child is involved, paramount consideration is welfare and best interests of child. The court has broad discretion in this respect. Hodges v. Hodges, 77 Ga. App. 86, 47 S.E.2d 823 (1948).

In contest between parents over custody of minor children, paramount issue is welfare and best interest of children, and award based upon evidence and in exercise of sound discretion will not be controlled by Supreme Court. Jordan v. Jordan, 195 Ga. 771, 25 S.E.2d 500 (1943); Handley v. Handley, 204 Ga. 57, 48 S.E.2d 827 (1948).

In contest between two fit parties, the one having legal right should prevail. If both are proper parties, but neither has a legal right, the one having strongest moral claims should prevail. But in every case, regardless of parties, welfare of child is controlling and important fact. Camp v. Bookman, 204 Ga. 670, 51 S.E.2d 391 (1949).

- Surviving parent had right to give temporary custody of child of tender years to her brother, that he might care for the child. When brother accepted request and offer of sister, and complied faithfully with his obligation, it would be a clear miscarriage of justice for court to have awarded custody to grandparents. Brant v. Bazemore, 159 Ga. App. 659, 284 S.E.2d 674 (1981).

- Court errs in granting custody to third parties on ground that father, who was first awarded custody but is deceased at time of mother's action for custody of child, had given child to third parties, that they had had child since, and were fit and proper parties to have custody, as custody could only be taken from parent having legal right thereto by showing that parent had lost her parental rights to child under former Code 1933, § 74-108 (see now O.C.G.A. § 19-7-1), or by clear and satisfactory proof, that she was an unfit person to have custody. Peck v. Shierling, 222 Ga. 60, 148 S.E.2d 491 (1966), later appeal, 223 Ga. 1, 152 S.E.2d 868 (1967).

Custodial parent's contract cannot deprive noncustodial parent of rights. Landrum v. Landrum, 159 Ga. 324, 125 S.E. 832, 38 A.L.R. 217 (1924), overruled on other grounds, Camp v. Camp, 213 Ga. 65, 97 S.E.2d 125 (1957).

- Surviving parent's right may be lost by a clear, definite, and certain voluntary contractual release of such right to child to a third person. Such an agreement is not subject to revocation without good cause shown. Durden v. Johnson, 194 Ga. 689, 22 S.E.2d 514 (1942).

- Trial court erroneously concluded that the grandparents' petition seeking custody of a mother's children failed to state a claim because the custody petition gave fair notice that the grandparents sought custody of the child under O.C.G.A. §§ 19-7-1(b.1) and19-9-2 based upon the mother's alleged murder of the father; those allegations were sufficient to survive a motion to dismiss. Scott v. Scott, 311 Ga. App. 726, 716 S.E.2d 809 (2011).

- Legal and parental right to custody is subject to challenge on ground of unfitness for trust. Peck v. Shierling, 222 Ga. 60, 148 S.E.2d 491 (1966), later appeal, 223 Ga. 1, 152 S.E.2d 868 (1968).

- Unfitness must be established by clear and satisfactory proof, and for grave and substantial cause, not merely that child might have better financial, educational, or even moral advantages. Peck v. Shierling, 222 Ga. 60, 148 S.E.2d 491 (1966), later appeal, 223 Ga. 1, 152 S.E. 868 (1967).

Parental unfitness must be shown by clear and convincing evidence. Wigley v. Bryant, 247 Ga. 508, 277 S.E.2d 246 (1981).

- When father of child is man of good character, has regular job, is well able financially to support child, maintains home of good environment, and there is no evidence showing his abuse or ill treatment of child, trial judge abused discretion in awarding custody of child to maternal grandmother. Hill v. Rivers, 200 Ga. 354, 37 S.E.2d 386 (1946).

- Trial court properly determined that collateral estoppel did not bar the grandparents' petition for custody of a mother's children because different issues were actually and necessarily decided in the grandparents' visitation action; in the visitation action, the issues were harm to the child if visitation was not granted and whether visitation would be in the best interest of the children, and in the custody action, the issues were whether the children would suffer physical or emotional harm if custody remained with the mother. Scott v. Scott, 311 Ga. App. 726, 716 S.E.2d 809 (2011).

- When the father had both negligently and willfully failed to fulfill his statutory duty to provide "the necessaries" for his minor children but no proceeding to establish abandonment, unfitness, or forfeiture of rights was instituted prior to the mother's death, O.C.G.A. § 19-9-2, which gives custody to the surviving parent absent a contrary judicial holding based on strong, clear, and convincing evidence, was probably operative at the time of the mother's death, and appellee at that time became, and continued to be, the children's legal custodian. Harper v. Landers, 180 Ga. App. 154, 348 S.E.2d 698 (1986).

- Generally, court where custodial parent resides has exclusive right to award change of custody; this is true whether legal custodian lives in another state or in another county, and irrespective of physical presence of child. Matthews v. Matthews, 238 Ga. 201, 232 S.E.2d 76 (1977).

Proceeding to change decree of custody may not be brought against custodial parent by noncustodial parent in county in which noncustodial parent resides. Matthews v. Matthews, 238 Ga. 201, 232 S.E.2d 76 (1977).

Third party who illegally withholds custody from surviving parent in another jurisdiction cannot counterclaim and contest custody when parent is forced to file a habeas petition in the foreign jurisdiction. Canning v. Evans, 250 Ga. 85, 295 S.E.2d 741 (1982).

- Person claiming no legal right of custody cannot institute habeas corpus proceeding. Spitz v. Holland, 243 Ga. 9, 252 S.E.2d 406 (1979).

Cited in City of Albany v. Lindsey, 11 Ga. App. 573, 75 S.E. 911 (1912); Barlow v. Barlow, 141 Ga. 535, 81 S.E. 433, 52 L.R.A. (n.s.) 683 (1914); Lucas v. Oglesby, 28 Ga. App. 427, 111 S.E. 579 (1922); Chapin v. Cummings, 191 Ga. 408, 12 S.E.2d 312 (1940); Walden v. Walden, 191 Ga. 182, 12 S.E.2d 345 (1940); Fortson v. Fortson, 195 Ga. 750, 25 S.E.2d 518 (1943); Thigpen v. Batts, 199 Ga. 161, 33 S.E.2d 424 (1945); King v. King, 203 Ga. 811, 48 S.E.2d 465 (1948); Handley v. Handley, 204 Ga. 57, 48 S.E.2d 827 (1948); Whitehurst v. Singletary, 77 Ga. App. 811, 50 S.E.2d 80 (1948); Good v. Good, 205 Ga. 112, 52 S.E.2d 610 (1949); Johnson v. Johnson, 211 Ga. 791, 89 S.E.2d 166 (1955); Bartlett v. Bartlett, 99 Ga. App. 770, 109 S.E.2d 821 (1959); Blood v. Earnest, 217 Ga. 642, 123 S.E.2d 913 (1962); Smith v. Smith, 219 Ga. 739, 135 S.E.2d 866 (1964); Harper v. Ballensinger, 121 Ga. App. 390, 174 S.E.2d 182 (1970); Barnwell v. Cordle, 438 F.2d 236 (5th Cir. 1971); Sanchez v. Walker County Dep't of Family & Children Servs., 237 Ga. 406, 229 S.E.2d 66 (1976); Matthews v. Matthews, 238 Ga. 201, 232 S.E.2d 76 (1977); Anglon v. Griffin, 241 Ga. 546, 246 S.E.2d 666 (1978); Abrams v. Daffron, 155 Ga. App. 182, 270 S.E.2d 278 (1980).

RESEARCH REFERENCES

Am. Jur. 2d.

- 59 Am. Jur. 2d, Parent and Child, § 32.

- 67A C.J.S., Parent and Child, § 58.

- What items of damage on account of personal injury to infant belong to him and what to parent, 37 A.L.R. 11; 32 A.L.R.2d 1060.

Attempt to bastardize child as affecting right to custody of the child, 37 A.L.R. 531.

Appointment of guardian for infant as affecting rights and duties of parent, 63 A.L.R. 1147.

Death of mother of child whose custody has been awarded to her or to third person by divorce decree as reviving father's common-law duty to support, or right to custody of, child, 128 A.L.R. 989.

Right to custody of child as affected by death of custodian appointed by divorce decree, 39 A.L.R.2d 258.

"Split," "divided," or "alternate" custody of children, 92 A.L.R.2d 695.

Child custody provisions of divorce or separation decree as subject to modification on habeas corpus, 4 A.L.R.3d 1277.

Award of custody of child where contest is between child's father and grandparent, 25 A.L.R.3d 7.

Award of custody of child where contest is between child's mother and grandparent, 29 A.L.R.3d 366.

Award of custody of child where contest is between child's grandparent and one other than the child's parent, 30 A.L.R.3d 290.

Award of custody of child where contest is between child's parents and grandparents, 31 A.L.R.3d 1187.

Extraterritorial effect of valid award of custody of child of divorced parents, in absence of substantial change in circumstances, 35 A.L.R.3d 520.

Remarriage of surviving parent as affecting action for wrongful death of child, 69 A.L.R.3d 1038.

Right to require psychiatric or mental examination for party seeking to obtain or retain custody of child, 99 A.L.R.3d 268.

Parent's physical disability or handicap as factor in custody award or proceedings, 3 A.L.R.4th 1044.

Award of custody of child where contest is between natural parent and stepparent, 10 A.L.R.4th 767.

Religion as factor in child custody and visitation cases, 22 A.L.R.4th 971.