West v. West, 26655

• Decision Date: 18 November 1971
• Docket Number: No. 26655,26655
• Citation: 228 Ga. 397,185 S.E.2d 763
• Parties: Gerald WEST v. Sandra Carol Smallwood WEST.
• Court: Georgia Supreme Court

Page 763

185 S.E.2d 763

228 Ga. 397

Gerald WEST v. Sandra Carol Smallwood WEST.

No. 26655.

Supreme Court of Georgia.

Nov. 18, 1971.

Rehearing Denied Dec. 1, 1971.

Allen, Smith & Tomlinson, T. M. Allen, Jr., Ashton K. Tomlinson, Decatur, for appellant.

Murphy, McFarland & Turoff, Martin McFarland, Atlanta, for appellee.

Syllabus Opinion by the Court

HAWES, Justice.

The appeal in this case is from so much of the final judgment and order of the Superior Court of DeKalb County entered in a divorce case which granted custody of the parties' minor child, age about 4 years, to the mother's grandfather over the contention of the father that he was entitled to its custody. No question as to the right of the mother to have custody is presented before this court.

1. 'In a contest between a parent and a third party over custody of a child, the first question to be determined is whether or not the parental control of the child has been lost by the parent. Unless such parental control has been lost, the parent has a prima facie right of custody.' Dornburg v. McKellar, 204 Ga. 189, 48 S.E.2d 820. Parental control may be lost by, among other things, failure of the father to provide necessities for the child and by cruel treatment of the child. Code § 74-108(3) and (6). As to this issue, the evidence in this case, while in conflict, was amply sufficient to authorize the trial judge to find that the child was living with the appellant-father in the home of its paternal grandparents (custody having previously been awarded to the father in a temporary order entered shortly after the divorce proceeding was filed) in a state of gross neglect and abuse; that he was not given even ordinary care with respect to bodily cleanliness and toilet training; that matters respecting his health and physical condition were neglected; that he was permitted by his father to consume alcoholic beverages; that he was frequently seen walking about with a cigarette in his mouth; that the father, either deliberately or by example, was teaching him to use profanity; that he was not provided with a balanced diet; that on at least one occasion the father failed to secure proper medical attention when the child had broken his arm; that the father had deliberately burned the child on the back of his hand with a cigarette; and, that the father stuck 'bobby pins' in his ears as a means of compelling him to be quiet and to go to sleep at night.

The father either denied or sought to explain away much of the evidence authorizing findings to this effect, and he also introduced positive evidence that the conditions under which the child was living and the care which he was receiving while in his custody were good. However, in cases involving the custody of minor children where the trial judge, sitting as the trier of the facts, hears the evidence, his finding based upon conflicting evidence is analogous to the verdict of a jury and should not be disturbed by a reviewing court if there is any evidence to support it. Kelly v. Kelly, 146 Ga. 362, 91 S.E. 120; Phillips v. Phillips, 161 Ga. 79, 129 S.E. 644; Perkins v. Courson, 219 Ga. 611, 616, 135 S.E.2d 388; Bass v. Bass, 222 Ga. 378, 388, 149 S.E.2d 818.

While we are not prepared to say that any one of the facts which the trial judge was authorized to find, as outlined above, standing alone, would be grounds for holding that the father had lost his parental rights, we think it is clear that the general conditions under which the child was shown to be living and the treatment which he was receiving at the...