Bowman v. Bowman

• Decision Date: 06 May 1975
• Docket Number: No. 29804,29804
• Citation: 234 Ga. 348,216 S.E.2d 103
• Parties: Donnie Keith BOWMAN v. Barbara Lynn BOWMAN.
• Court: Georgia Supreme Court

Page 103

216 S.E.2d 103

234 Ga. 348

Donnie Keith BOWMAN v. Barbara Lynn BOWMAN.

No. 29804.

Supreme Court of Georgia.

May 6, 1975.

Robert L. Collins, Jr., Calhoun, for appellant.

William T. Elsey, Cartersville, for appellee.

Syllabus Opinion by the Court

NICHOLS, Chief Justice.

This is an appeal from an order granting custody of two minor children to the Gordon County Department of Family and Children Services.

Appellant, Donnie Keith Bowman, is the father of two children, both under two years of age. He brought an action against his wife, Barbara L. Bowman, appellee herein, for divorce and custody of the children. Appellee counterclaimed for divorce and custody of the children. Both parties are 21 years of age. After a hearing, the trial court entered a final order awarding permanent custody of the children to the Gordon County Department of Family and Children Services to be placed for adoption. The court found that appellant 'is somewhat delinquent in his work habits and is too young to be faced with the problem of rearing two children of the ages involved in this case.' The court further found that 'after considering all of the evidence presented upon the hearing in this case, together with the investigative reports received from the various investigating agencies of Gordon County, the future best interests of these children would be for them to be placed in the custody of the (department) . . .' A final judgment of divorce was entered. Appellant appeals from the order awarding custody to the Department. Appellee has filed no cross-appeal.

Code Ann. § 30-127 provides that 'In all cases of divorce granted, the party not in default shall be entitled to the custody of the minor children of the marriage. The court, however, in the exercise of a sound discretion, may look into all the circumstances of the parties, including the improvement of the health of the party seeking a change in custody provisions, and, after hearing both parties, make a different disposition of the children, placing them, if necessary, in possession of guardians appointed by the ordinary. The court may exercise a similar discretion pending the application for divorce.' It has been held, however, that as between 'a parent and a third person such discretion does not exist and it is only where a parent has lost the right to custody that a child may be placed in the custody of a third person. See Mills v. Mills, 218 Ga. 686, 130 S.E.2d 221.' Phelps v. Phelps, 230 Ga. 243, 244(3), 196 S.E.2d 426, 427.

A parent may lose the right to costody only if one of the conditions specified in Code §§ 74-108, 74-109 and 74-110 is found to exist, or, in exceptional cases, if the parent is found to be unfit. Triplett v. Elder, 234 Ga. 243(1), 215 S.E.2d 247; Williams v. Ferrell, 231 Ga. 470(1), 202 S.E.2d 427; Perkins v. Courson, 219 Ga. 611, 135 S.E.2d 388. The...