Wilkinson v. Lee
| Decision Date | 10 July 1912 |
| Citation | 75 S.E. 477,138 Ga. 360 |
| Parties | WILKINSON v. LEE. |
| Court | Georgia Supreme Court |
Syllabus by the Court.
A father is entitled, prima facie, to the control of his minor child.
(a) But parental power may be lost "by voluntary contract releasing the right to a third person," or "by failure of the father to provide necessaries for his child."
(b) A contract releasing the right of parental power over a child must be clear, definite, and certain.
Where a father, a few days after the death of his wife, voluntarily told the great-grandfather of his child, three days old, that he might take and keep the child as long as he and his wife lived, or until the child was 21 years old, and the grandparent did take, keep, maintain, and protect it until it was abducted by the father, at three years of age, this was a voluntary contract on the part of the father releasing his right to the child to a third person, and it was sufficiently definite and certain to be enforced.
(a) In such a case the contract is not void as being unilateral.
(b) Nor is it void and unenforceable for want of consideration.
(c) The evidence is amply sufficient to support the finding in this case.
In a habeas corpus proceeding by a great-grandfather to recover possession of a child alleged to have been given to him by its father, and who was alleged to have been abducted from him by the latter, it is not reversible error for the court pendente lite, to award the temporary custody of the child to the grandparent from whom it had been so taken, upon his giving bond for its production in court, where it appears that the final judgment was right.
As strict technical pleadings are not required in habeas corpus proceedings as in some others.
(a) Judges of the superior court are vested with large discretion in habeas corpus cases, and their judgment in such cases on questions of law and fact will not be interfered with by this court, unless manifestly abused.
(b) The court below did not abuse its discretion in this case.
The other grounds of error assigned are without merit.
Error from Superior Court, De Kalb County; L. S. Roan, Judge.
Habeas corpus proceedings by J. R. Lee against R. A. Wilkinson for custody of Theodore Lee Wilkinson, a minor child. From a judgment overruling certiorari to a judgment awarding the custody of the child to the plaintiff, defendant brings error. Affirmed.
Alonzo Field and Paul L. Lindsay, both of Atlanta, for plaintiff in error.
Hooper Alexander and J. D. Kilpatrick, both of Atlanta, for defendant in error.
This is a habeas corpus proceeding commenced by J. R. Lee, the great-grandfather of Theodore Lee Wilkinson, a minor child three years old, to recover possession of the minor from his father, R. A. Wilkinson. The plaintiff in error, Wilkinson married the granddaughter of the defendant in error. By this union the child in controversy was born. The mother died seven hours later. After the funeral of the mother, the question arose as to what should be done with the child. There is a conflict in the evidence, but the preponderance of it is to the effect that the father, the plaintiff in error being consulted about the disposition of the child, said, in substance, to the great-grandfather Lee, that he "couldn't just give the child away like a puppy," but that he might take the child and keep it as long as he and his wife lived, or until the child was 21 years old. The plaintiff in error insists that the child was left as a temporary loan, and that no definite contract was set forth. This old couple did take the child, cared for it, and paid all of its expenses, of whatever kind, including medical bills, etc. The wife of Lee was not related to the child, she being a second wife; but the evidence discloses that she was kind and attentive, and loved and cared for the child as a mother. Some time after the death of his wife, Wilkinson moved from Henry county, where he had lived and worked around in various places, and in the neighborhood where the Lees lived, and sometimes for the Lees. He was frequently a visitor at the Lee home, and seemed fond of the child. He was permitted to see the child as often as he wished, and on one occasion was allowed to take the child away from the Lee home to a picnic. Leave to take the child to his home for a visit shortly thereafter was refused. At one time Wilkinson gave Lee $2 for the child, which he loaned out for the latter, but would never accept any compensation for the rearing or expenses of the child. About a year before the bringing of the present action, Wilkinson, the father, married a second time, and his wife was received at the Lee home on the same terms as her husband had been. No claim to the child as a matter of right seems to have been asserted by Wilkinson; and Mrs. Lee testified that on one occasion she told Wilkinson she had heard of a threat on his part to take the child away, which he denied. He testified that he made no reply. No question is raised in the record as to the excellent character of either party to the case, or as to the ability of either to properly raise, maintain, and educate the child. On Sunday, the 28th day of August, 1910, the day previous to the suing out of the writ of habeas corpus, Wilkinson with his wife came on a visit to the Lee home, and were received as usual. His two brothers came in a buggy, but concealed themselves in the woods near the house, where they could not be seen by the Lees. The Lees and the Wilkinsons sat on the porch and ate watermelons. A little later Wilkinson walked out in the yard with the boy, then about three years old, placed him in a buggy from which the horse had never been unhitched. Suddenly and without any apparent warning he drove off with the boy at a rapid gait. His wife, seizing her hat, rushed out into the road and was taken in the buggy of the brothers and driven rapidly away. The two sons of Lee, as soon as a horse could be hitched to a buggy, gave pursuit and overtook Wilkinson about two miles from the Lee home. Being called on by them to stop, he informed the Lees he had a gun. The pursuit was there abandoned, and the present action begun the next day before the Hon. J. R. George, ordinary of De Kalb county, to recover possession of the child so taken. The trial was postponed several times at the instance of Wilkinson, in order to allow him to take the testimony of his mother, who was unable to attend court. A continuance later, in order to take the testimony of other witnesses as to Wilkinson's good character, was denied; the counsel for Lee stating that the character of Wilkinson was admitted to be good. The court, after hearing all the testimony in the case and argument of counsel, awarded the custody of the child to the plaintiff, Lee. To this judgment Wilkinson applied for a writ of certiorari to the superior court. After the hearing upon the certiorari, the superior court declined to interfere with the judgment of the ordinary, and the present writ of error was sued out, excepting to the judgment of the superior court.
1. A father is entitled, prima facie, to the control of his minor child. Civil Code, § 3021. But parental power may be lost among other ways, "by voluntary contract, releasing the right to a third person," "or by failure of the father to provide necessaries for his child." Civil Code, § 3021; Janes v. Cleghorn, 54 Ga. 9; Bently v. Terry, 59 Ga. 555, 27 Am.Rep. 399; Miller v. Wallace, 76 Ga. 479, 2 Am.St.Rep....
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