1. "In a contest between the father and mother over the custody of a minor child, in a habeas-corpus proceeding, the welfare of the child is of paramount consideration, and an award made by the judge based upon the evidence and in the exercise of a sound discretion will not be set aside." Attaway v. Attaway, 194 Ga. 448 (22 S.E.2d 50); Pruitt v. Butterfield, 189 Ga. 593 (6 S.E.2d 786); Code, §§ 74-106, 74-107.
2. Where an order or decree has been entered, awarding the custody of a child to one of the contesting parents, it is the rule in habeas corpus as well as divorce cases that such a judgment is binding and conclusive between the parties, unless a change of circumstances affecting the welfare of the child is made to appear; and while the interest and protection of the child remains paramount, if affected by a change in the status of the parties, yet "Where it does not appear that the evidence in a subsequent trial is different from that on the first trial as to the character and status of the parties, the former judgment is final between them." Kirkland v. Canty, 122 Ga. 261, 263 (50 S.E. 90); Shields v. Bodenhamer, 180 Ga. 122, 124 (178 S.E. 294); Sells v. Sells, 172 Ga. 911 (159 S.E. 237); Drake v. Drake, 187 Ga. 423, 429 (1 S.E.2d 573), and cit.; Willingham v. Willingham, 192 Ga. 405, 406 (15 S.E.2d 514); Brooks v. Thomas, 193 Ga. 696, 699 (19 S.E.2d 497); Kniepkamp v. Richards, 192 Ga. 509 (6, a), 519 (16 S.E.2d 24).
3. Whether or not this rule of res judicata would apply in a habeas corpus case such as this, involving the custody of a boy of eleven years in a contest between the parents, where the judge in the previous order, awarding custody to the mother, expressly sought to retain jurisdiction of the case and provided that the order continue only until further order of the court, the evidence on the present petition of the father, brought three months after the first order, did not demand a finding that a present change of custody to the father would be for the welfare of the child. As to the validity and effect of such previous orders and reservations, see Richards v. McHan, 139 Ga. 37 (3), 39 (76 S.E. 32); Crowell v. Crowell, 191 Ga. 36, 38 (11 S.E.2d 190); Oetter v. Oetter, 150 Ga. 118 (3) (102 S.E. 818); Scott v. Scott, 154 Ga. 659 (2), 660 (115 S.E. 2). No attack was made in this case on the validity of the previous order as to the retention of jurisdiction or otherwise. In any event, the judge did not abuse his discretion in continuing the mother's custody, with full rights to the father to visit the child.
No. 14489. APRIL 15, 1943. Donald C. Jordan, the father of Donald C. Jordan Jr., was living separately from the mother, Mrs. Iness Allene Mays Jordan, but provided money for their support. Mrs. Jordan, who lived in Augusta, brought a habeas-corpus petition against her husband, to obtain custody of their son eleven years of age. In August, 1942, the court entered an order, awarding custody to the mother until further order of the court, and retaining jurisdiction of the case, with full rights to the father to visit the child. In this order, as a reason for the award, the advantage of keeping the child in school at Augusta rather than in Knoxville, Tennessee, was recited. There was no exception to this order; and there is no showing as to the evidence on which it was entered. In November, 1942, the husband filed in the same case a petition to change the custody of the child from the mother to the husband or a boarding-school, on grounds indicated in the opinion. After hearing full evidence, the judge entered an order continuing the mother's custody, with provisions similar to those in the previous order, as to the husband's right to visit the child and as to a retention of jurisdiction and the continuance of the award until further order of the court. The husband excepted.
Although a psychiatrist testified that the mother, who had previously been his patient, suffered from a paranoid psychosis, which was manifested in delusions of persecution; that such persons, "however good their motives are, and however intelligent they are, are usually dangerous," and that the child's association with the mother would be harmful to him, this doctor also testified that approximately two years had elapsed since he "had her under [his] observation;" and that he had not seen the child with the mother "for the last six months," which was before the previous award. There was no evidence that she had ever been adjudged insane; or as to what her mental condition was at the time of the hearing, or that it had changed since the first award; or that her nervous or mental condition was in fact reacting injuriously on the child. The testimony of the husband as to the mother living with the child in a transient rooming-house without providing a better home, and as to her improper feeding and education of the child, was rebutted by several witnesses for the mother, including the boy himself, as to his proper schooling, special coaching, the environment where the mother lived, his food and gaining of eleven pounds in *Page 773 weight, normal life with other boys, and his contentment with the mother in the house where they lived and in his school. On a habeas-corpus petition by the mother of a boy eleven years of age, against her husband, living separately from her without a divorce, the judge awarded custody of the child to the mother, but expressly provided, that, "with a view solely for the best interest of said child, the jurisdiction of said cause is retained," and that this order should "continue until the further order of the court." To this order there was no exception. Three months later, the father filed a petition, which was entitled in the same case, to change the custody of the child, on the grounds that the mother had neglected the feeding and proper education of the child, and that her "unstable nervous condition" was and would be detrimental to the child. There was no averment and no evidence as to any change in the status of the parties since the previous order, other than as to education and feeding, upon which the testimony of the husband was controverted by the testimony of several witnesses, including the boy himself, to the effect that he had gained several pounds and was happy in the care of the mother, and that she was doing all that could be done for his education in sending him to a public school and having him specially coached by his teacher. There was no showing that the mental condition of the mother had changed, or that she had ever been adjudged mentally incompetent. The judge continued the mother's custody, but, as in the original order, retained jurisdiction, and provided that the order continue in force until the further order of the court. Whether or not the rule of res judicata as to the binding force of the previous judgment would apply in a case such as this, where jurisdiction was retained and the order was provisional, and where the evidence did not demand a finding for the father on the only alleged changes in condition, the judge did not abuse his discretion in permitting the mother to retain custody, since the testimony did not demand a finding that the welfare of the child would be best served by changing his custody to the father, and thus removing the child to another State and placing him there in the home of the father's kindred or in a school.
Judgment affirmed. All the Justices concur. *Page 774