Bozeman v. Williams

• Decision Date: 25 November 1981
• Docket Number: No. 37933,37933
• Citation: 285 S.E.2d 9,248 Ga. 606
• Parties: BOZEMAN v. WILLIAMS.
• Court: Georgia Supreme Court

Page 9

285 S.E.2d 9

248 Ga. 606

BOZEMAN v. WILLIAMS.

No. 37933.

Supreme Court of Georgia.

Nov. 25, 1981.

Rehearing Denied Dec. 15, 1981.

Robert W. Pierce, Doraville, for Lisa Aitken Bozeman.

Andrew J. Hill, Jr., Lavonia, for Walter A. Williams, Sr. JORDAN, Chief Justice.

The appellant brings this appeal from a judgment denying her petition for habeas corpus in which she sought the return of custody of her minor child.

The appellant, Mrs. Bozeman, is the natural mother of 4 year old Michael Williams, the illegitimate child of Mrs. Bozeman and the appellee's son, Walter Williams, Jr. The appellee is the paternal grandfather of the minor child and currently has physical custody of the child.

There have been several legal actions between the parties involving this child from the time he was born. In the last action temporary custody of the child was awarded to Mrs. Bozeman pending an investigation of Mrs. Bozeman and Walter Williams, Jr.

Subsequently, in October of 1980, Mrs. Bozeman, who had raised the child since birth in 1977, relinquished physical custody to the appellee. She testified that she did so because (1) she had lost her job over a conflict with her manager; (2) the appellee's son wasn't making his child support payments (though there was some testimony that he had finally paid them); (3) she didn't have the means to and didn't feel she could adequately raise the child at this time; and (4) she had no one else to turn to but Walter Williams, Sr., the appellee.

Sometime during November 1980, Mrs. Bozeman signed a document entitled Surrender of Parental Rights and Final Release for Adoption. The appellee's attorney sent this paper to Mrs. Bozeman who signed it and returned it to him. The document was not dated or notarized and was not accompanied by an acknowledgment.

In January of 1981, Mrs. Bozeman married Marty Bozeman, a policeman for the City of Chamblee Police Department. Mr. Bozeman owns a home and earns fifteen thousand dollars a year. Mrs. Bozeman subsequently requested the return of the child. The request was denied, and the appellant then filed this habeas corpus proceeding. The habeas trial judge denied the petition, finding that Mrs. Bozeman had voluntarily relinquished custody to the appellee. We reverse.

In a contest between a parent and a third party over the custody of a child a parent may lose the right to custody 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. Mathis v. Nicholson, 244 Ga. 106, 259 S.E.2d 55 (1979).

Though the trial court made no finding as to Mrs. Bozeman's fitness as a parent, the appellee argues the evidence would have justified a finding of unfitness, and that, consequently, the trial court's order is correct. We disagree. There was some evidence that Mrs. Bozeman had smoked marijuana, had held several jobs, had moved several times, and had had an abortion. A determination of unfitness must be based on the parent's present condition and must be shown by clear and convincing evidence. Shaddrix v. Womack, 231 Ga. 628, 632(6), 203 S.E.2d 225 (1974); Mathis v. Nicholson, supra, 244 Ga. at 106, 259 S.E.2d 55. The above evidence relates to past events, and there is ample evidence that the mother's condition has changed for the better by her marriage to Mr. Bozeman.

The right to custody may be lost under § 74-108(a)(1) if the parent has forfeited his or her right to parental powers by releasing this right to a third person by voluntary...