Kilgore v. Tiller
| Decision Date | 22 September 1942 |
| Docket Number | 14265. |
| Citation | 22 S.E.2d 150,194 Ga. 527 |
| Parties | KILGORE v. TILLER et al. |
| Court | Georgia Supreme Court |
Syllabus by the Court.
Where the petition for habeas corpus, the answer, and the evidence adduced in support of the respective contentions of the parties presented an issue of fact, it was erroneous for the judge, after the proofs were submitted, the evidence closed and after argument of counsel, to make an investigation of his own, have witnesses interviewed, their names and number being unknown to the plaintiff, and without the right given her to cross-examine them, and thereafter to render a decision based on such evidence which was not taken in open court and not a part of the record.
C O. Baker, of Athens, for plaintiff in error.
Erwin & Nix, of Athens, for defendants in error.
Mrs Nellie J. Kilgore, the mother of an illegitimate child, Wayne Tiller, born September 13, 1939, brought habeas corpus against Mr. and Mrs. J. W. Tiller, the parents of the child's father, seeking to have the child's custody awarded to her. The father at the hearing testified that he was the father of the child, that he had never been married to Mrs. Kilgore, that he had no legal interest in the boy, that he had made no claim and was not trying to claim the custody of Wayne Tiller.
The Code, § 74-203 declares: Under this, the prima facie right to the custody was in the mother. That provision, however, must be construed in connection with § 50-121, as follows: 'In all writs of habeas corpus sued out on account of the detention of a wife or child, the court, on hearing all the facts, may exercise his discretion as to whom the custody of such wife or child shall be given, and shall have power to give such custody of a child to a third person.' Superimposed, however, is the principle, so often declared, that the welfare and happiness of the child is the paramount consideration in a proceeding for his custody. Lamar v. Harris, 117 Ga. 993(3), 44 S.E. 866; Hammond v. Murray, 151 Ga. 816, 108 S.E. 203. There was no evidence that the mother had ever surrendered her right to the custody of her child, nor did it demand a finding that she was not a fit and proper person to have his custody. While the judge has a large discretion in a case such as this, that discretion should be exercised in favor of the party having the legal right, unless the interest and welfare of the child justifies an award to another. Monk v. McDaniel, 116 Ga. 108(4), 42 S.E. 360; Butts v. Griffith, 189 Ga. 296, 5 S.E.2d 907; Fowler v. Fowler, 190 Ga. 453, 9 S.E.2d 760.
An issue of fact was raised by the petition and answer. The result of that issue...
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