1. Where, as here, the custody of a minor child is involved, under the theory of changed conditions, since the original award of the custody following a final decree for divorce, it is illegal to go behind the former judgment with reference to the conduct of the parties in the divorce proceeding prior to the first award of the custody of the child.
2. In an award of the custody of the child, the rights of the parents as to reasonable access to the child should be exercised with good judgment, keeping in mind always the best interests of the child. DECIDED JULY 11, 1949. This case arose out of a controversy between V. Clyde Leftwich, plaintiff in error here, and Annie Lovelance Cook (Annie *Page 586 Lovelance Leftwich). At the time of the institution of the present case, both the father and the mother, after obtaining a divorce, had remarried. Each of them contended that a change of custody was to the best interest of the child, a boy who was at the time about four years old. The record is voluminous, containing approximately 225 pages. When the instant controversy came on for hearing in the superior court as to an award of the child, the controversy was referred to the Juvenile Court of Fulton County for investigation and an award of the custody of the child. In view of the length of the record, and the approximately two-year controversy over the award of the custody of the child, it seems from a study of the record and a clear understanding of the issues involved, that we can adopt here no better method of, in part, presenting the issues than to set out the judgment of the Superior Court of Fulton County in passing upon the law and the facts when the court reversed the judgment of the juvenile court on petition for certiorari and remanded the case to the juvenile court and specifying in the judgment of the superior court the law applicable as to future procedure. This judgment gives more or less a history of the controversy from the time of the divorce decree between the father and the mother and what has happened since. That judgment reads: "It appears from the record in the above stated case that at the time the divorce was granted between the parties the final judgment and decrees provided that the contract entered into between the parties March 1, 1946, be made the judgment of the court. This contract provides for the custody of the minor child involved.
"On the 21st day of February, 1947, Judge Frank A. Hooper passed a consent order modifying the agreement between the parties in reference to the custody of the child, it being provided in said order `that the question of custody of the child shall remain in the breast of the court and that the above and foregoing order is subject to modification upon change of conditions on or before April 1, 1948.'
"March 22, 1948, the plaintiff filed the petition stating that the agreement as to the provision of the child was not for the best interest, and that the court's order should be modified further, setting up that since the separation and divorce, he had *Page 587 lived a clean life; that the defendant had married one Robert R. Sudderth, and that the marriage was not successful; that the defendant is now working and leaving the child in the custody of a day nursery; that since he, the plaintiff, had married that his present wife was willing and anxious to have the responsibility of the child; that he now owns and operates a business from his residence and can personally supervise his child at all times, and he prays that the agreement and order of the court referred to in this petition be modified and permanent custody and control of said child be awarded to him. He further prays that the child be allowed to visit his mother and his mother visit him at any and all reasonable times. An answer was filed to this petition and the same was referred by this court to the Juvenile Court of Fulton County for investigation and determination of all issues in relation to the custody of the minor.
"At the trial of this case the judge of the juvenile court permitted much evidence to be introduced as to the condition on the parties prior to the divorce proceedings and prior to the order of Judge Hooper, dated February 21, 1947. It is clear to the court that this petition was brought for modification on the grounds of alleged changed conditions since the order as to the custody of the child has been passed and the court is of the opinion that the admission of evidence prior to these orders and judgment was error.
"The petition under consideration prays that the child be allowed to visit his mother, and that the mother be allowed to visit him at any and all reasonable times. The court is of the opinion that the judgment of the juvenile court restricting the mother to visit the child `at such times as is convenient to the father at the father's home' does not follow the prayers of the petition and leaves the right of the mother to visit her child at the whim of the father.
"Therefore the certiorari in this case is sustained and the case is remanded to the juvenile court for a rehearing with instructions that the evidence at the hearing shall relate to the change of conditions on or after February 21, 1947.
"This the 1st day of March, 1949. [Signed] Virlyn B. Moore, J. S.C. A. C."
The record reveals that after the father and mother of the *Page 588 child obtained a divorce, the mother married one Sudderth, from whom she obtained a divorce and thereafter married her present husband Cook. The father had also married again and was living in the vicinity of Chattanooga, Tennessee. The record also reveals that the mother is employed in Atlanta, Georgia, with the Veterans' Administration. She lives in the home of the grandmother of the child, who is a trained nurse. There is nothing in the record to reveal that since the award of the custody of the child at the time of the divorce between the father and the mother, which award was based upon an agreement between the father and the mother and which was approved by order of the judge of the superior court, that the father or the mother at this present time or since the award of the child in accordance with the agreement are not in financial condition to take care of the needs of the child and are not morally fit to supervise the rearing of the child. We might here state the material portions of the award of the custody of the child based upon the agreement between the father and the mother at the time their marriage was dissolved. The agreement provided that the actual custody of the child be divided equally between the father and the mother. The father was to have the child commencing on March 1, 1946, and the mother was to have the child for three consecutive months following the period in which the child was in the custody of the father. It was further provided that the rotation of the actual custody of the child was to continue until such child became of school age and entered school or "untilfurther order of this court." It was further provided that after one year the rotation of months might be changed by agreement of the parties. Upon application, the rotation of the child as to time was slightly changed by order of the superior court dated February 21, 1947, and it was provided in that order that "the question of the custody of the child shall remain in the breast of the court and the above and foregoing order is subject to modification upon change of conditions on or before April 1, 1948." Thereafter, the application was again filed in the superior court for change in the previous orders regarding the custody of the child and praying that the superior court investigate and pass an order making a permanent award of the custody of the child. Thereupon the superior court referred the whole matter to the *Page 589 juvenile court "for trial, investigation, and determination of the issues between the father and the mother relative to the permanent custody of the child." This order was signed April 5, 1948. The question here is, did the judge of the superior court err in reversing the judgment of the juvenile court? Since we have gone into the procedure substantially, but nevertheless briefly, in view of this lengthy record, we think the law of the case under the record may be discussed in two divisions, as follows: (a) Counsel for the father contends that under this record the superior court erred in that portion of the judgment wherein the judgment of the juvenile court is reversed because the juvenile court went into evidence prior to the award of the custody of the child at the time the divorce between the father and the mother was granted. The attorney for the father advances the argument that there never was a permanent award of the custody of the child in the meaning of the law, but that all of the orders pertaining to the award of the custody of the child before the matter was referred to the juvenile court were merely temporary orders and not permanent orders. And that the juvenile court had the right to go into and investigate the conduct and conditions of the parents prior to the order of February 21, 1947. There is no dispute as between counsel that a child is the ward of the State and that in the trial of an issue involving the award of the custody of the child the interest of the child is paramount. The Supreme Court in the case of Kniepkamp v.Richards, 192 Ga. 509 (6-a) (16 S.E.2d 24), said: "An award of custody made in a divorce decree, is conclusive unless there has been a subsequent change of circumstances, materially affecting the child's welfare." Also, in Fuller v. Fuller,197 Ga. 719 (30 S.E.2d 600), the Supreme Court held that in a final decree in a divorce suit, the awarding of the custody of the minor children to one or the other of the parents is conclusive unless a change of circumstances affecting the welfare of the children is shown. Such a similar provision as is contained in the order of February 21, 1947, in the instant case, "unless otherwise ordered" does not have the effect of nullifying the decree nor does it have the effect of depriving the decree *Page 590 of "its character of finality." Scott v. Scott, 154 Ga. 659 (115 S.E. 2). See also, in this connection, the case ofFortson v. Fortson, 195 Ga. 750 (25 S.E.2d 518), wherein the Supreme Court held: "While the original decree as to custody was based upon an agreement between the parties, it was nonetheless a judgment of the court, having the usual attribute of conclusiveness. . . . In this case, permanent custody was awarded to the mother, subject to the right of the father to visit the children, and to have temporary custody at reasonable times, with the further right to apply to the court in case of violation of either of these privileges, or if reasonable grounds for complaint should arise `with reference to the health, well-being or education of the children.' Such were the terms of the decree, and subject to these conditions, it was conclusive." The whole decision in Fortson v. Fortson, supra, appears to be applicable almost throughout. The Supreme Court also held inMilner v. Gatlin, 143 Ga. 816 (4) (85 S.E. 1045, L.R.A. 1916B, 977): "A decree in a divorce suit awarding a child of the marriage to one of the parties is prima facie evidence of the legal right to its custody, but is not conclusive in habeas corpus proceedings, where the circumstances and conditions pertaining to the fitness of the parent, arising since the date of the decree, are involved. If, since the decree, the circumstances have changed, a habeas corpus court may award the custody to the other parent, or to a stranger, if the welfare of the child demands it." See also, in this connection, and to the same legal effect, Sessions v. Oliver, 204 Ga. 425 (50 S.E.2d 54). On the point now under consideration, a very interesting and lucid decision will be found in Shields v.Bodenhamer, 180 Ga. 123, 124 (178 S.E. 294). While it is true that, in a proceeding before a tribunal concerning the awarding of the custody of a child, the court has a discretion, the discretion vested in the tribunal is not arbitrary or unlimited but it is a discretion guided and governed by law.Miller v. Wallace, 76 Ga. 479 (2 Am. St. Rep. 48). See alsoWilson v. Maryland Casualty Co., 71 Ga. App. 184 (30 S.E.2d, 420); Sherrill v. Sherrill, 202 Ga. 288 (3) (42 S.E.2d, 921). We find an interesting comment in the case of Lucas v. Smith, 201 Ga. 834, 837 (41 S.E.2d 527), to this effect: "The rules of law applicable here appear to have been summed up in Williams v. Crosby, 118 Ga. 298 *Page 591 (45 S.E. 282), where this court said: `In a contest between two parties both of whom are fit and proper persons, the one having the legal right should prevail. If both are proper parties, but neither has a legal right, the one having the strongest moral claim should prevail. But, in every case, regardless of the parties, the welfare of the child is the controlling and important fact. This is not intended to nullify the laws of nature; for in most instances it will be found that the legal right of the parent and the interest of the child are the same. But, if through misconduct or other circumstances it appears that the case is exceptional and that the welfare of the child requires that it should be separated, even from its parent, the parents patriae must protect the helpless and the innocent.'" Under the record in this case and by virtue of the authorities cited (and there are others) the judge of the juvenile court exceeded his authority in going behind the decree of February 21, 1947. The record throughout shows that his conduct was arbitrary in this regard and unlawful. It therefore follows that the judge of the superior court did not err in remanding the case to the juvenile court for further investigation and conclusion under the law applicable to such proceedings.
(b) It will be noted in the judgment of the superior court in remanding the case to the juvenile court for further consideration the court said: "The court is of the opinion that the judgment of the juvenile court restricting the mother to visit the child `at such times as is convenient to the father at the father's home' does not follow the prayers of the petition and leaves the right of the mother to visit her child at the whim of the father." This is but an expression on the part of the judge of the superior court that the juvenile court abused its discretion in restricting and limiting the right of the mother to visit her child. We agree with the judge of the superior court. We are not altogether without precedent in this State and sound thinking and reasoning on this question. In the case of Scott v. Scott, 154 Ga. 659, 661 (115 S.E. 2), the Supreme Court said: "Where the custody is awarded to one parent it is usual and proper to permit the other parent to have reasonable access to the child. It is very difficult to lay down specific rules upon this subject which will be just and adequate under the varying circumstances that *Page 592 must arise. It should be sufficient to say that the rights and privileges to each parent should be exercised with good judgment and discretion, with mutual forbearance, and with proper regard to the rights of each other and to the welfare of the child. The court may in a proper case forbid access by one spouse to the child whose custody is awarded to the other, or limit the right to visit the child to a particular time and place; but mere past delinquency of a parent is not a ground for withholding enjoyment of the right." We think that the juvenile court in holding that the right of the mother to visit the child, by restricting the visits to "such times as is convenient to the father at the father's home," withheld from the mother the right to see her child except at the "whim" of the father. There is nothing in this record that should justify such a restriction. We have no difficulty, in this phase of the case, in reaching the conclusion that the judge of the juvenile court abused his discretion in this regard, and the judge of the superior court on certiorari was justified in so holding.
Judgment affirmed. MacIntyre, P. J., and Townsend, J., concur.