Walker v. Jones

• Decision Date: 23 January 1907
• Docket Number: 40.
• Citation: 57 S.E. 903,1 Ga.App. 70
• Parties: WALKER et al. v. JONES.
• Court: Georgia Court of Appeals

57 S.E. 903

1 Ga.App. 70

WALKER et al. v. JONES.

No. 40.

Court of Appeals of Georgia

January 23, 1907

Syllabus by the Court.

In the hearing of a habeas corpus to determine the custody of a child, the trial judge is invested with a broad discretion which, however, is not arbitrary or unlimited, but is to be guided and governed by rules of law. When it appears that upon such a hearing the judge was influenced by a misconception of the law and of his powers in the matter, a new trial will be granted, that the discretion may be exercised in accordance with the true rule.

Upon a contest as to the custody of a child between the father and a person who acquired the custody of the child peaceably, it is not required that the testimony against the father's fitness be overwhelming. It is necessary only that the proof be clear and satisfactory, and that a strong case be made out.

In such cases the welfare of the child is the paramount consideration.

When a court is asked to lend its aid to put the infant into the custody of the father and to withdraw him from other persons the trial judge should look into all the circumstances, and ascertain whether it will be for the real permanent interest of the infant; and, if the infant be of sufficient discretion, his wishes should also be consulted.

Error from City Court of Atlanta; Reid, Judge.

Habeas corpus by Charles C. Jones against one Walker and another to regain possession of his son. Judgment for petitioner, and defendants bring error. Reversed.

W. S Thomson and Candlers, Thomson & Hirsch, for plaintiffs in error.

Rosser & Brandon and I. S. Hopkins, for defendant in error.

POWELL J.

Jones brought habeas corpus to regain the custody of his son, Jean Walker, formerly Claude Jones (the child's name having been changed by an order of the court), against Walker and Mrs. Walker. It appears from the record that in 1894 Mrs Pinkie V. Jones, the mother of the boy, secured a total divorce from the plaintiff on the ground of cruel treatment, and by the decree in that case the child was awarded to her. The mother died recently and left the child in the hands of the defendants, one of whom was his maternal uncle and the other his maternal grandmother. It seems that the mother had made an ineffectual attempt to make Walker, the uncle, testamentary guardian of the boy. Upon the hearing a great deal of evidence was submitted upon the issue as to the father's unfitness to have the custody of the child. The evidence was conflicting, but considering it as a whole, and giving to the testimony offered by the plaintiff its full value and the benefit of all legitimate inferences to be drawn therefrom, it may still be fairly said, from the undisputed facts, that it failed to establish for the plaintiff a very exemplary character, and, on the other hand, left strong reasons for refusing him the custody of the child. He had been convicted in May, 1905, of gaming and of running a gaming house (chain-gang sentences of 12 months each in these cases being suspended during good behavior); his name had been publicly associated with that of a prostitute; even by his own admissions his conduct had not been chaste; he had been conducting a poolroom for betting on horse races; and the nearest approach he is shown to have made in recent years toward having a fair and reputable means of a livelihood was that at the time of the trial he was employed as the agent of a man who ran a turf exchange in Birmingham. He had not been associated with the child since its earliest infancy, and had furnished nothing to its support. He is perhaps not to be held culpable in this neglect, since the decree in the divorce case took the custody of the child from him. After his divorce from the mother of the child, he married again, and the second wife secured a divorce from him, and the jury in that case refused to remove his disabilities. There was testimony from the defendants, which for the purpose of the investigation in this court is not to be given any controlling weight, since it was disputed, and the court below found against it, which tended to show that the plaintiff was a notorious gambler, and that he lived in a lewd house, and that he was otherwise of very bad character. Be it said to the plaintiff's credit, however, that he proved an excellent character for abstinence from intoxicating liquors, for personal honesty in business affairs, and for the taking care of an aged mother and other female relatives. The plaintiff returned no property for taxation, and the boy had sufficient estate to support him.

The following judgment was rendered by the trial judge: "In this case it is my opinion that, upon the death of the child's mother, its father at once became entitled, under the law, to the custody of the child. This right of the father is recognized in law as superior and paramount to that of all others, and it must be recognized and enforced, unless legally forfeited. In my opinion it does not appear in this case that such right has been forfeited by the father in any of the specific methods provided by law. I do not think the failure of the father to provide support during the time it was held legally in the custody of the mother under the decree of the court in the divorce suit can be held to work a forfeiture of his legal right. The father's right, then, to the custody of the child not having been forfeited in any of the legal methods specified, the case must be considered as if the father had in fact the custody of the child, as well as the right to its custody. To take the child from the custody of its father and give it to some third person is a most grave exercise of judicial power, and can only be justified when the circumstances of the case absolutely demand it, for the good of the child itself; and this necessity must be made apparent from the test of the actual experience of the father in caring for his child, or by overwhelming evidence of the unfitness of the father to properly discharge this duty. I do not think in this case the facts would warrant me to exercise the discretion of awarding the child to a third person. It is therefore ordered that the custody of the child mentioned in the habeas corpus be awarded to Charles C. Jones, the petitioner; but it is ordered that this judgment be superseded until the respondents have opportunity to file bill of exceptions and take this case to the Supreme Court, and until the final disposition of this case. Meantime the said child is to be kept within the jurisdiction of the court to abide the final judgment in the case."

The defendants, in addition to excepting generally to the judgment, further assign as error the refusal of the court to admit in evidence a pending indictment recently found against plaintiff, charging him with gambling; also the refusal of the court to admit in evidence the entire divorce proceedings, including the allegations of cruel treatment, in the case of Bernice Jones, the second wife, against the plaintiff, the court having admitted only the decree. At the conclusion of the testimony the defendants produced the child, who was then over 14 years old, and requested "an examination of the child by the court touching his relationship with his father and his maternal grandmother and uncle, with a view to ascertaining his preferences in the matter, and what would be the best for the child." The court refused to examine the child or consider his wishes in the matter; and to this ruling the defendants excepted though the assignment of error does not show or state any contention as to what an...