Bell v. Bell
| Decision Date | 28 May 1980 |
| Docket Number | No. 59361,59361 |
| Citation | 267 S.E.2d 894,154 Ga.App. 290 |
| Parties | BELL v. BELL. |
| Court | Georgia Court of Appeals |
Ben Kirbo, Bainbridge, for appellant.
Ronnie J. Lane, Donalsonville, for appellee.
1. An award of child custody in a divorce case is prima facie evidence of the mother's legal right to custody. "However, contrary to appellant's contentions, in order to change that award of custody the trial court does not necessarily have to find that the legal custodian has forfeited her parental rights under Code Ann. §§ 74-108, 74- 109 and 74-110" but there must be a showing either that the original custodian is no longer able or suited to retain custody or that the conditions and circumstances surrounding the child have so changed that its welfare would be enhanced by modifying the original judgment. Dearman v. Rhoden, 235 Ga. 457(3), 219 S.E.2d 704 (1975).
2. On petition of the father of the six-year-old daughter of the parties the court, after an exhaustive hearing, withdrew custody from the appellant mother and placed it in the appellee. A careful examination of the record in this case reveals no change of condition relating to the welfare of the child, except for the better, with the sole exception on which the trial court based his order removing the child from her custody:
A thorough examination of the testimony of all witnesses satisfies us that the trial judge's findings of fact and conclusions of law are based in their entirety on the plaintiff's admission of and lack of repentance for the act of living with a third party without benefit of clergy, and that all other factors included in the testimony, such as the actual facts of school and home environment, were not taken into account. As to this salient factor, it should be noted that the defendant testified: The attorney made the following statement: ...
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...Wilbanks v. Wilbanks, 220 Ga. 665, 141 S.E.2d 161 (1965) ("immoral conduct" and birth of an illegitimate child); Bell v. Bell, 154 Ga.App. 290, 267 S.E.2d 894 (1980) (cohabitation); Henderson v. Department of Human Resources, 152 Ga.App. 74, 262 S.E.2d 241 (1979) (heroin usage and repeated ......
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M.M.A., In re
...the child have so changed that modification of the original judgment would have the effect of promoting his welfare. Bell v. Bell, 154 Ga.App. 290, 267 S.E.2d 894 (1980). It is a change for the worse in the conditions of the child's present home environment rather than any purported change ......
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