Except in a contest between the parents as provided in the Code, § 74-107, the father has a prima facie right to the custody of his minor child. In a habeas corpus proceeding brought by the father against third persons, one of whom is the sister of the child's dead mother, there being no evidence to show that the father had forfeited or surrendered his legal right of custody by any of the modes which the law provides, the judge did not err in awarding custody to the father.
No. 14403. FEBRUARY 9, 1943. The plaintiff's petition for habeas corpus alleged, that he was the natural father of William Henry Norwood Jr., a male child about four years of age; that the mother of the child died when he was only a day or so old; that the defendants some time in the past took said minor away from the petitioner, and are now illegally detaining the child at their residence in Elbert County; that on September 5, 1942, the petitioner made a demand upon the defendants for the child, whereupon he was ordered from the premises, and the defendants refused to deliver the child to petitioner; that the detention is illegal, in that petitioner is the natural father and entitled to the custody and control of his minor son; and that he has at no time, by contract or otherwise, released or forfeited his right to the control and custody of said child.
The answer of the respondents admitted their custody of the child, and that the petitioner was its natural father, but denied that their detention was illegal. They admitted that the petitioner made demands upon them for the child, as alleged in the petition. *Page 384 their refusal, and that they ordered the petitioner from the premises, but averred that they did so because they knew he was a "pistol toter" and in order to prevent trouble or a breach of the peace. The response averred that the child was born in Oglethorpe County on May 1, 1938; that his mother died at the time of its birth or shortly thereafter; that the respondent Mrs. Bond was a sister of the child's mother; that at the time of the death of the child's mother the plaintiff and the respondents orally agreed that the respondents should take the child to their home in Elbert County and keep him for six months, during which period the plaintiff was to do what he could to aid in his support; that at the expiration of the six-months period the plaintiff did not come for the child, but he came to the home of the respondents when the child was about fifteen months old, and asked Mrs. Bond if she wanted him to take the child; whereupon she informed him that they were not going to let him have the child, and that they were going to keep him, since they had become attached to the boy as foster parents; that thereafter until September 5, 1942, the plaintiff allowed the child to remain with the respondents; that the plaintiff has done very little for the child (a list of articles amounting in value to $14, which respondents say represents the plaintiff's total contribution to the support of the child, is set forth); that the respondents know little of the plaintiff's finances, but know that he could have done more for the child; that by his contract and conduct pursuant thereto he lost and forfeited his rights to the custody of the child in view of all the circumstances; that he has been guilty of laches in asserting his right to the custody of the child in any form of a legal proceeding; and that the respondents have acquired rights, with respect to the custody of the child, which are superior to those of the natural father.
Evidence introduced by the petitioner included his own testimony and the testimony of a number of his neighbors in Oglethorpe County. His evidence, in substance, shows that when the child's mother died, and only after being advised so to do by the nurses, he agreed with respondents that they might keep the child for a period of six months; that at the expiration of the six-months period the doctor advised petitioner and respondents that in view of the child's poor health his life would be endangered if the plaintiff moved him; and thereupon the plaintiff entered into another *Page 385 agreement with respondents, whereby they were permitted to retain the child for another period of six months; that his only means of reaching the home of the respondents from his home in Oglethorpe County was by horse and buggy, which is a long distance for such travel, or by a circuitous railway route; that he did not get there until two or three months after the expiration of the last six-months period; that when he reached their home he requested Mrs. Bond to surrender the child, and she refused, saying that they intended to keep him and never intended to surrender him to the plaintiff; that in view of the fact that Mrs. Bond was the sister of his dead wife he desired to avoid any litigation, and delayed taking legal steps until this proceeding was instituted in the hope that they would finally decide to do the right thing and let him have the child without the necessity of legal process; that when he made demand as alleged, he was promptly ordered to leave respondents' home; and that he instituted this proceeding shortly thereafter. His neighbors testified that he was honest, industrious, sober, and of good reputation; that all of his children (except a girl of seventeen years, who quit school after finishing the sixth grade, to cook and keep house for the rest of the family) attended school regularly; and that all of his children were adequately dressed, and attended Sunday school and church.
A stipulation was entered, that the respondents were of good moral character, and that they were suitable persons to have the care and custody of the minor child. They introduced testimony to show that they had paid all of the expenses of the child, including doctor bills and medical expenses, with very little help from his father; that on the day they first took the child the father offered them $5, but, knowing that he had a number of small children to support, they accepted only one dollar and told him to keep the other; that petitioner did not promise to pay respondents for caring for and supporting the child; and that the respondents made no charges and expected no pay for what they did for the child.
At the conclusion of the evidence the court entered judgment, dated October 16, 1942, in which a history of the child as disclosed by the evidence is recited. The judgment recites that it appears from the evidence that the petitioner has never forfeited his parental rights to the child; that its placement with the respondents *Page 386 was solely for the purpose of providing for the care of the infant until he reached such an age that his father could care for him; that the father is able to care for the child; that he has a home to which he can carry him; and that no sufficient reason has been shown why the father can not care for this child as he is doing for his other children. The judgment directs that the Department of Public Welfare or its proper agencies are requested to visit the father's home to determine the condition of the child. It then recites that temporary custody is awarded to the father, and that "until the further order of the court the plaintiff may take the child into the home and keep it. Let the sheriff of Elbert County deliver said child to the plaintiff at the sheriff's office in Elberton, Georgia." To this judgment the respondents excepted. It is declared in the Code, § 74-108: "Until majority, the child shall remain under the control of the father, who is entitled to his services and the proceeds of his labor." That section further provides that this parental power shall be lost by either of the six means therein stated. The Code, § 74-109, provides that a child may by judgment of the ordinary be taken from the possession of the father because of his cruel treatment of the child; and § 74-110 provides that the ordinary may take a child under the age of twelve from the parents, when it is made to appear that the child is being reared under immoral, obscene, or indecent influences likely to degrade its moral character and devote it to a vicious life. With these exceptions, the father's right to the custody of his minor child, as against the claim of a third person, is not subject to legal challenge. The judge was authorized to find from the evidence in this case that the petitioner, the natural father of the child, had not surrendered or forfeited his legal right to the custody by any of the means which the law provides. But it is contended that in the exercise of the discretion which is vested in him by the provisions of the Code, § 50-121, the judge had the legal authority, despite the fact that the father had not forfeited or surrendered his right of custody by any of the acts which the law declares may work such forfeiture, to award custody to the respondents upon the sole ground that in his judgment the best interest of the minor would be protected thereby. *Page 387 The statute relied upon does declare that the court on hearing all the facts may exercise his discretion as to whom the custody shall be given, and shall have power to give such custody of a child to a third person. This court held in Smith v. Bragg,68 Ga. 650, that the court had this discretionary power; but a discretion in this respect is not an unbridled and unrestricted authority to ignore legal rights of the parent. A proper discretion will in no case arbitrarily deprive a litigant of rights which that litigant has under the plain provisions of the law. It can not be contended that by the enactment of the Code section relied on the legislature intended thereby to nullify other statutes above cited, giving to the father of the minor the right of custody and control of that minor, and specifying the various modes whereby the father may under the law surrender or forfeit this legal right. Having thus established by statute the right, and having also provided by statute the ways where by this right may be lost, the legislature did not intend by the enactment of the section relied upon to establish another means of depriving the father of this valuable right, although the means is as indefinite as the judgment of the various courts may be on the question of the welfare of the minor. We have no hesitancy in holding that the provisions of § 50-121 were not intended by the legislature to, and do not in fact, limit or alter the right of custody of a minor which the law confers upon the father as against the claims of third persons. See generally,Taylor v. Jeter, 33 Ga. 195 (81 Am. D. 202); Miller v.Wallace, 76 Ga. 479 (2 Am. St. Rep. 48); Sloan v. Jones,130 Ga. 836 (62 S.E. 21); Harwell v. Gay, 186 Ga. 80 (196 S.E. 758); Butler v. Ross, 188 Ga. 329 (4 S.E.2d 21).
A different rule of law is applicable when the contest for the custody of a minor is between the parents of that minor. In such a case the father has no prima facie right to its custody, and the law directs that the welfare and best interest of the child control the court in awarding custody. Code, § 74-107. Of course it is the policy of the law in awarding custody of a minor to promote the welfare and best interest of that child in all cases; but in view of the provisions of law giving the father prima facie right to custody as against third persons, and specifying the various acts or omissions of the father which may work a forfeiture of his right of custody, it is obvious that in the eyes of the law, unless the father *Page 388 has so lost or forfeited this right, the welfare and best interest of the minor will be protected by putting the child in the custody of the father. These controlling principles of law outweigh any argument which has been offered in support of the attack upon the judgment awarding custody to the father. Since under the evidence the father had not lost or forfeited his right of custody, the judge properly refused to hear evidence tending to show the comparative fitness of the father and the respondents. While the language of the judgment indicates that the judge sought to retain jurisdiction of the case for future action, the judgment is nevertheless sufficiently final to authorize the respondents to except thereto and obtain a review thereof by writ of error. Porter v. McCalley, 146 Ga. 594 (91 S.E. 775, 93 S.E. 405). The judge did not abuse his discretion in awarding custody to the father.
Judgment affirmed. All the Justices concur.