62 S.E. 21 (Ga. 1908), Sloan v. Jones
| Citation | 62 S.E. 21,130 Ga. 836 |
| Date | 15 July 1908 |
| Docket Number | . |
| Parties | SLOAN v. JONES et al. |
| Court | Georgia Supreme Court |
Page 21
Casemaker Note: Portions of this opinion were specifically rejected by a later court in 139 S.E. 531
Syllabus by the Court.
While the judge, upon a hearing of a writ of habeas corpus for the detention of a child, is vested with a discretion in determining to whom its custody shall be given, such discretion should be governed by the rules of law, and be exercised in favor of the party having the legal right, unless the evidence shows that the interest and welfare of the child justify the judge in awarding its custody to another.
[Ed. Note.-For cases in point, see Cent. Dig. vol. 25, Habeas Corpus, § 84.]
Prima facie the right of custody of an infant is in the father. On the hearing of habeas corpus proceedings against him, if it is claimed that the custody should be taken from him and awarded to its maternal grandmother, the power ought to be exercised in favor of the father, unless he has relinquished or forfeited his right, or the circumstances of the case would justify the court, acting for the welfare of the child, in refusing it.
[Ed. Note.-For cases in point, see Cent. Dig. vol. 25, Habeas Corpus, § 84.]
The original application for the writ of habeas corpus in this case was made by the mother of the child against the father, but she relinquished her claim to have the custody awarded to her in favor of her mother, to whom it was sought to have the custody of the child awarded, instead of to the father.
The facts and circumstances, as disclosed by the evidence, did not authorize a judgment taking the custody of the child from its father and awarding it to its grandmother.
Error from Superior Court, Bartow County; A. W. Fite, Judge.
Application for writ of habeas corpus by Laura J. Sloan against B. C. Sloan and others. Laura A. Jones intervened. Judgment for relator, and defendant brings error. Reversed.
While the judge, upon the hearing of a writ of habeas corpus for the detention of a child, is vested with discretion in determining to whom its custody shall be given, such discretion should be governed by the rules of law, and be exercised in favor of the party having the legal right, unless the evidence shows that the custody and welfare of the child would justify the judge in awarding its custody to another.
Page 22
On January 2, 1908, Mrs. Laura J. Sloan made affidavit for the purpose of having a writ of habeas corpus issued, alleging that her child, a little boy 24 months of age, was illegally detained by its father in his exclusive possession; that he threatened to remove the child beyond the limits of the state, and she apprehended he would do so; that he had no home in the state where he could keep and comfort the child, and "said B. C. Sloan had never supported said child or paid its expenses"; and that the petitioner had a home with her mother, who was able and capable in every way of rearing the child, and who was willing and anxious to do so. The writ of habeas corpus was issued, with an order to the sheriff to take possession of the child and bring him before the court. The writ having been executed, the child brought before the court, and due return made by the officer, and, neither side being ready for trial, the hearing was continued until another day, and in the meantime the child was, by order of the court, placed in the custody of its maternal grandmother until the time set. After this the grandmother filed her petition to intervene in the case, alleging, among other things, that she was entitled to the custody of the child; that she was attached to him, and was willing, ready, and able to take, rear, and care for him. She also alleged that she had sufficient means to insure his maintenance, comfort, and education, and that she had made a will including a provision for him. She prayed that the custody of the child be awarded to her, and that a rule nisi be issued requiring both parties to show cause why this should not be done. This intervention was allowed by the presiding judge. On the hearing the respondent moved to quash the habeas corpus proceedings and the writ, because the original petition did not set forth any sufficient allegations on which to base the issuance of the writ, or to show that the detention was illegal. He moved that the petition or intervention of the grandmother, Mrs. Laura A. Jones, be quashed and stricken from the files, as showing no right on her part to intervene or ground for the judgment prayed for by her. He also moved that the order allowing the intervention be vacated. Each of these motions was overruled. The original petition and the intervention were then answered by the respondent.
So far as necessary to be stated, the evidence on behalf of the applicant and the intervener was as follows: Mrs. Jones testified in brief: In June, 1906, the respondent, Sloan, was living in Nevada, and his wife was living with her parents in Cartersville. Mr. and Mrs. Jones were very anxious to effect a reconciliation between them. Sloan wrote to Mr. Jones that he would not return to Georgia unless his wife requested him to do so. Mr. Jones insisted that his daughter should write her husband to return, and she did so, though objecting to doing so. Sloan telegraphed for $700 to arrange matters. Mr. and Mrs. Jones borrowed that amount from bank and sent it to him; and, after receiving it, he returned to Georgia in the latter part of June, 1906. On his return, Mrs. Jones fitted up a home for them from her own funds. They kept house about six weeks, when Mrs. Sloan was taken sick, and her general health was impaired. Then Mr. and Mrs. Jones took the Sloans to their house, where they lived until the day before the present writ was sued out. While living there, Mrs. Jones furnished all necessary food and clothes for the child, and paid all household expenses. Mr. Sloan had no position, and the witness knew of his doing nothing to secure one. He never talked to her about his business plans, except as to some mineral interests; and she knew of no income that he had. He was out no necessary expenses except for his wearing apparel. He spent most of his time reading. He never offered to pay the witness or her husband any board for himself or for his child. Mrs. Jones never thought of his paying board for his child, for the reason that he did not return to Georgia until the child was six months old; and, as she had supported, cared for, and become attached to the child, she never expected to have any one then or afterwards claim him and deprive her of him. She had never made any request of Mr. Sloan to pay board, because she did not think he was able to do so. The only reference ever made to paying board was one night, after he had been at her house for many months, when he and his wife had heated words, in which she told him he had no right to give her directions, because he had not supported her or paid her board. He turned to Mrs. Jones, and said, "Mother, I didn't know I was expected to pay board," to which Mrs. Jones replied, "No; I didn't expect you to pay." Mrs. Jones said this because she had no grounds to anticipate that he was able to pay, and, as long as he remained in her home without income or position, she did not feel that she could reasonably expect board of him. She knew that her home was the only place where both he and her daughter could enjoy the companionship of their child. He had no home in this state or elsewhere to her knowledge. She never believed that he would attempt to take the child away from her and Mrs. Sloan. He gave her his sacred word of honor that he would not. Mrs. Jones is worth $100,000, and has an income of $3,000 from insurance companies. All of her children are grown, married, and self-supporting, except Mrs. Sloan, who is dependent on her. Out of her income she helps her children to some extent, but does not encroach on the corpus. If the custody of the child is awarded to her, she will give him the best education he will accept, and will endeavor to fit him for a useful life. Her husband was a Protestant minister, and loved
Page 23
his grandson very much. Sloan, the father of the child, is a Catholic; and, if he be allowed to have the custody of the child for the next few years, it is almost certain to become a Catholic. Months before the commencement of the present litigation she made a will, by one item of which she bequeathed certain property to her daughter Mrs. Sloan, for life, with remainder to any child or children who might survive Mrs. Sloan; and, in case of no child or children surviving Mrs. Sloan, the property was to revert to the estate of the testatrix. She also provided in her will that Sam Jones Sloan, the child involved in this controversy, should receive from her estate "a finished education and maintenance," if the income from the property thus devised was insufficient for that purpose.
Mrs. Sloan testified, in brief, as follows: She was married to Sloan on March 29, 1905, and went to Pennsylvania with him, and a little later to West Virginia. During the month of April of the same year she and her husband had several disagreements, and in the latter part of May they had a quarrel which caused her to realize that they could not be happy together. From that time she never lived with him as his wife, though they kept house a few weeks during a subsequent year. She made several visits after this quarrel, and then came to Cartersville to live with her sister, reaching there about July 18, 1905. Sloan went to Nevada in October, 1905. After he reached there he sent her $50, and at Christmas sent her $100. On January 1, 1906, she went to her mother's and father's home to live, her baby having been born in December, 1905. After this he sent her $50 a month until about June, 1906. Her father endeavored to get her and her husband reconciled. Sloan wrote that he would...
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