2021 Georgia Code
Title 19 - Domestic Relations
Chapter 9 - Child Custody Proceedings
Article 1 - General Provisions

- Procedure for appeals from judgments or orders awarding or refusing to change child custody or holding or declining to hold persons in contempt of such child custody judgments or orders, § 5-6-35.

Kidnapping of child under age 16 against will of child's parents or other person having lawful custody, § 16-5-40.

Offense of interference with custody, § 16-5-45.

- For survey article on domestic relations, see 34 Mercer L. Rev. 113 (1982). For note on 1995 amendments and enactments of sections in this article, see 12 Ga. St. U.L. Rev. 96 (1995).

JUDICIAL DECISIONS

Editor's notes.

- In light of the similarity of the statutory provisions, decisions under former Civil Code 1910, § 2931 and former Code 1933, § 50-121, as it read prior to 1981 recodification are included in the annotations for this article.

For additional cases dealing with custody of children, see annotations under Code Section § 9-14-2, dealing with habeas corpus on account of detention of child, and Code Sections §§ 19-7-1 and19-7-4 dealing with parental powers and loss of parental custody.

- General rule is that court where parent with legal custody 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) (decided under former Code 1933, § 50-121).

- In exercising discretion, judge shall not disregard or impair acknowledged or established rights of any party; to do so would constitute an abuse of discretion. Hill v. Rivers, 200 Ga. 354, 37 S.E.2d 386 (1946) (decided under former Code 1933, § 50-121).

- While judge in awarding custody of child is vested with wide discretion, such discretion should be governed by rules of law, and when rivalry between parents for custody of child is not involved, discretion should be exercised in favor of the party having legal right, unless evidence shows that interest and welfare of the child justify the judge in awarding the child's custody to another. Harter v. Davis, 199 Ga. 503, 34 S.E.2d 657 (1945) (decided under former Code 1933, § 50-121).

Court's discretion should be exercised in favor of party having legal right unless evidence shows that interest and welfare of child justify judge in awarding child's custody to another. Harper v. Ballensinger, 121 Ga. App. 390, 174 S.E.2d 182, rev'd in part on other grounds, 226 Ga. 828, 177 S.E.2d 693 (1970) (decided under former Code 1933, § 50-121).

- In all cases between parents for custody of minor children, law imposes upon trial judge duty to exercise sound discretion and to let welfare of child control judges award. The judge is empowered to award such custody to a nonresident for one month each year, and to resident parent for other 11 months; and whether judge requires bond of nonresident for return of child is a matter solely in the judges discretion. Pruitt v. Butterfield, 189 Ga. 593, 6 S.E.2d 786 (1940) (decided under former Code 1933, § 50-121).

- When there is none having legal right to custody save the father, it would be a travesty to hold that none other, even a sister of the child, has standing to seek change of custody if it appears that welfare of child requires it. Harper v. Ballensinger, 121 Ga. App. 390, 174 S.E.2d 182, rev'd in part on other grounds, 226 Ga. 828, 177 S.E.2d 693 (1970) (decided under former Code 1933, § 50-121).

- If evidence material to inquiry into change of circumstances is in conflict, disposition made by trial court will not be controlled by appellate courts. Bosson v. Bosson, 223 Ga. 793, 158 S.E.2d 231 (1967) (decided under former Code 1933, § 50-121).

- It is usually material and proper for one party to show that other is unfit to have custody of child. Beck v. Beck, 134 Ga. 137, 67 S.E. 543 (1910); Crapps v. Smith, 9 Ga. App. 400, 71 S.E. 501 (1911) (decided under former Civil Code 1910, § 2931).

- Change of circumstances that would render prior judgment inconclusive is not necessarily limited to change in moral or financial condition of parent to whom initial award was made, but includes any new and material change in circumstances of either parent or of children, which might substantially affect the health, happiness, or welfare of the children. Handley v. Handley, 204 Ga. 57, 48 S.E.2d 827 (1948); Robinson v. Ashmore, 232 Ga. 498, 207 S.E.2d 484 (1974) (decided under former Code 1933, § 50-121).

- Capacity, ability, or fitness of party to whom child was awarded in previous proceeding may thereafter become entirely different. Status of both such parties and child may have changed. Change of circumstances may render a change necessary in order to promote the health, happiness, or welfare of the child. Handley v. Handley, 204 Ga. 57, 48 S.E.2d 827 (1948) (decided under former Code 1933, § 50-121).

Parent may lose right to custody if found by clear and convincing evidence to be unfit. White v. Bryan, 236 Ga. 349, 223 S.E.2d 710 (1976) (decided under former Code 1933, § 50-121).

- When husband was overseas with armed forces and wife had been engaging in illicit relations with another man while the children were left without adult supervision, the judge was authorized to find that it was in the best interests of three and five-year-old children to be left in the custody of the paternal grandmother. Harter v. Davis, 199 Ga. 503, 34 S.E.2d 657 (1945) (decided under former Code 1933, § 50-121).

- While commission of crime might not absolutely forfeit father's right to custody of infant for all time, being a prisoner on parole makes him a person unfit to care for his child. Yancey v. Watson, 217 Ga. 215, 121 S.E.2d 772 (1961) (decided under former Code 1933, § 50-121).

- When there was no evidence that mother was presently engaged in homosexual relationship but merely some evidence of past conduct, custody should not have been denied on basis of unfitness. Gay v. Gay, 149 Ga. App. 173, 253 S.E.2d 846 (1979) (decided under former Code 1933, § 50-121).

- Judgment of court of competent jurisdiction of sister state, awarding custody of minor child, which is regular on judgment's face and unimpeached for fraud, is entitled to full faith and credit in proceedings for custody of child in this state. Bowen v. Bowen, 223 Ga. 800, 158 S.E.2d 233 (1967), overruled on other grounds, Crumbley v. Stewart, 238 Ga. 169, 231 S.E.2d 772 (1977) (decided under former Code 1933, § 50-121).

- Judgment of court of competent jurisdiction of sister state may be modified only when it appears that there has been such change in conditions since original decree as would authorize modification of similar judgment rendered by courts of this state. Bowen v. Bowen, 223 Ga. 800, 158 S.E.2d 233 (1967), overruled on other grounds, Crumbley v. Stewart, 238 Ga. 169, 231 S.E.2d 772 (1977) (decided under former Code 1933, § 50-121).

RESEARCH REFERENCES

ALR.

- Propriety of provision of custody or visitation order designed to insulate child from parent's extramarital sexual relationships, 40 A.L.R.4th 812.

Parent's or relative's rights of visitation of adult against latter's wishes, 40 A.L.R.4th 846.