Chunn v. Graham

• Decision Date: 08 April 1903
• Citation: 43 S.E. 987,117 Ga. 551
• Parties: CHUNN v. GRAHAM.
• Court: Georgia Supreme Court

43 S.E. 987

117 Ga. 551

CHUNN v. GRAHAM.

Supreme Court of Georgia

April 8, 1903

Syllabus by the Court.

1. In habeas corpus proceedings to determine who is entitled to the custody of a minor under the age of 14 the wish of the child, while not controlling, may be considered, along with all the other evidence, to enable the court to determine what is for the best interest of the child, and who is the proper custodian. Pen. Code, § 1226.

2. The evidence warranted the finding, and this court will not interfere with the discretion of the trial judge in awarding the custody of the child to the grandmother.

Error from Superior Court, Meriwether County; S.W. Harris, Judge.

Habeas corpus by Sarah Graham against Saphronia Chunn to determine the custody of a minor. From the judgment, respondent brings error. Affirmed.

McLaughlin & Jones, for plaintiff in error.

Culpepper & Blalock, for defendant in error.

LAMAR, J.

It was competent on the hearing to permit the child to state with whom she preferred to live. In many cases such wish ought to turn the scale. The nearer the child approaches 14, with the legal right to choose her guardian, the greater the weight to be given such wish. But until that age the law does not recognize the child as sufficiently mature to determine with whom it ought to live, and its wish, therefore, is not controlling, but may be considered by the habeas corpus judge, along with all the other evidence, as to what is to the minor's best interest; for at last, in this class of cases, that is usually the controlling factor. The petitioner and respondent start the machinery of the law, and can appeal and continue the litigation until there is a final decision; but it is the best interest of the child, and not the interest of the moving parties, that must control the decision unless one of them has a legal right and is a proper person to have the custody of the minor.

There was no error of law assigned. The evidence, though conflicting, was amply sufficient to support the finding of the ordinary, which has been approved by the judge of the superior court on an application for certiorari, and the judgment is affirmed. All the Justices concurring, except LUMPKIN, P.J., absent on account of sickness.