Spitz v. Holland, 34238

• Decision Date: 23 January 1979
• Docket Number: No. 34238,34238
• Citation: 243 Ga. 9,252 S.E.2d 406
• Parties: SPITZ et al. v. HOLLAND.
• Court: Georgia Supreme Court

Page 406

252 S.E.2d 406

243 Ga. 9

SPITZ et al. v. HOLLAND.

No. 34238.

Supreme Court of Georgia.

Argued Nov. 15, 1978.

Decided Jan. 4, 1979.

Rehearing Denied Jan. 23, 1979.

Jack P. Turner, Atlanta, for appellants.

Webb, Young, Daniel & Murphy, David E. Betts, Atlanta, for appellee.

JORDAN, Justice.

This appeal is from a judgment dismissing a petition for habeas corpus on the ground that the petitioners (appellants) do not have standing to bring the action.

The appellants are the maternal grandparents of two minor children. Their petition against the father of the children alleged that the mother of the children is dead; the father has denied them visitation rights with the children; and the father is unfit to have custody of the children. They prayed that custody be placed in them and the father be required to support the children, or, in the alternative, that they have visitation rights.

The father filed a motion to dismiss the action. The trial judge, in dismissing the action relied on Hall v. Hall, 222 Ga. 820, 152 S.E.2d 737 (1966), which held that in a habeas corpus action for the custody of children the action is by one claiming custody against one holding custody, and the proceeding cannot be brought by one not having any right of custody.

The Hall case was followed by Bennett v. Schaffer, 228 Ga. 59, 183 S.E.2d 760 (1971), which held that the trial judge properly dismissed the petition for habeas corpus of maternal grandparents of an infant child. It was there said: "Habeas corpus is a special statutory proceeding. This court has held that habeas corpus is not an available remedy to inquire into the legality of the custody of a child in a case where the alleged detention is not against the right of the applicant for habeas corpus."

The Hall and Bennett cases, supra, did not deal with older cases which had allowed persons claiming no legal right to the custody of minor children to bring habeas corpus proceedings. In Brown v. Harden, 150 Ga. 99, 102 S.E. 864 (1920), a grandmother was permitted to bring a habeas corpus proceeding to inquire into the custody of her three minor grandchildren; and in Roebuck v. Calhoun, 201 Ga. 496, 40 S.E.2d 142 (1946), a maternal aunt was permitted by petition for habeas corpus to inquire into the custody of her minor nephew. These cases are physical precedents only, since the question of whether the applicant had standing to bring the proceeding was not made in either case. Counsel for the appellants has cited us no case, and we have found none, in which this court has held that a person claiming no legal right to the custody of a minor child has standing to bring habeas corpus action to obtain the custody of the child.

The appellants cite Code § 50-121, as amended, and Code § 74-106. While these Sections authorize a habeas corpus court to exercise a discretion as to the possession of a minor child in the circumstances stated therein, no right is given by these Sections to a person claiming no legal right of custody to institute a habeas corpus proceeding. These Sections have been construed to give only a limited discretion to a trial judge where a parent and a third person are disputing the custody of a child. Land v. Wrobel, 220 Ga. 260, 138 S.E.2d 315 (1964).

After further consideration of the issue we adhere to the former ruling of this court that a habeas corpus proceeding to obtain the custody of minor children may not be brought by a person claiming no legal right of custody.

This does not mean that a person...