1. "While the judge, upon a hearing of a writ of habeas corpus for the detention of a child, is vested with a discretion in determining to whom its custody shall be given, such discretion should be governed by the rules of law, and be exercised in favor of the party having the legal right, unless the evidence shows that the interest and welfare of the child justify the judge in awarding its custody to another." Butts v. Griffith, 189 Ga. 296 (2) (5 S.E.2d 907), and cit.; Code, § 50-121.
2. Under the evidence, which showed that the grandparents had taken care of the child since he was eighteen months old; that the father had served a term in the chain-gang for abandonment, and that he was separated from his second wife who had sued him for divorce and recovered a judgment awarding her alimony of $20 a month, none of which had been collected, the judge was authorized to find that it was to the best interest and welfare of the child to be awarded to the grandfather; and though the evidence was conflicting as to whether the father parted with parental custody, and as to whether he contributed to the support of the child, it can not be held that the judge abused his discretion in awarding custody of the child to the grandfather.
Judgment affirmed. All the Justicesconcur.
No. 13194. JUNE 12, 1940. *Page 454 Habeas corpus for custody of Moses Fowler, a boy fifteen years of age, was instituted before the ordinary by M. H. Fowler, the paternal grandfather of the child, against Will Fowler, his son, who was the child's father. It was alleged, that when the child was eighteen months old his mother died, and at that time Will Fowler turned the child over to the petitioner and his wife, who have supported, reared, educated, and maintained the child ever since; and that the father had recently taken and was illegally detaining the child. The father answered, denying that he had ever parted with parental custody. On the hearing there was evidence to the effect that when the child's mother died she said she wanted the paternal grandparents to have him. After her death the father and the child lived with the grandparents. In about three years the father left, saying the grandparents could keep the child. He married again, and has two children by his second wife. Subsequently he ran off with another woman, and served a term in the chain-gang in 1935 for abandonment of the second wife and their children. The grandparents kept the child in school and bought books and clothing for him until about two weeks before the hearing. The child would occasionally go to his father's residence, but called the grandfather's house home. The grandfather is sixty five years old, and owns no property, but receives an old-age pension, and he made a little crop this year. The second wife testified, that she lived with the father after he served his term for abandonment, but later separated and sued him for a divorce and alimony; that the jury gave her twenty dollars a month, but she has not collected any of it; and that the father never did drink, and always worked. The father testified, that he rented a home next door after leaving the home of the grandparents; that the child went back and forth at pleasure; that he (father) bought clothes and books for the child when he knew about it; that he has employment in a thread mill, and a married daughter whose husband also works at the mill lives in the house with him; and that he never gave the child to the grandparents. The child testified that his father had always been good to him, and he wanted to live with him; that his father had always bought clothes when he wanted them, ever since he could recollect, and bought all school books except one time when the grandfather *Page 455 bought them; and that he quit staying with his grandfather, because the latter "quarreled all the time and did not want" the child "to be out with other boys fishing, and the like."
The ordinary awarded the child to the grandfather. On certiorari this award was affirmed by the superior court. The father excepted, assigning error on the judgment overruling the certiorari.