dissenting.
The majority misconstrues the meaning of the Fulton County Superior Court’s order. That court, when the mother absconded after being held in contempt,1 ordered the sheriff to jail her until she could be brought before the court for a further hearing. Meanwhile, it gave the father indefinite visitation rights, rather than the week’s visitation originally granted at the contempt hearing.2 The court did not purport to change custody or *376place temporary custody in the father, which it clearly cannot do in a contempt case. We agree with the majority that the court’s order must be given a valid construction; however, there is nothing in the the record to support the conclusion that the father might also have filed a change of custody petition in addition to the contempt action, just because the jurisdiction for change of custody then also belonged in the Fulton court.
Under Code Ann. § 81A-160(d), "pleadings must affirmatively show no claim in fact existed.” By filing his suit, the father admits he did not have legal custody of the child. Under Matthews, supra, a suit to change custody must be brought where the legal custodian resides. The father’s pleadings clearly state that his former wife was not a resident of Georgia. Therefore, the DeKalb Superior Court erred in failing to grant the mother’s motion to set aside the judgment. I would reverse in order to strengthen and reaffirm the important public policy as stated in Matthews.
I am authorized to state that Justice Hill joins in this dissent.
The record and transcript reveal that the father has not been entirely free of wrongdoing, but has also kidnapped the child from the mother. I thus find the public policy rationale stated by the majority less compelling.
"It is hereby ordered that the Sheriff of Fulton County, Georgia, take custody of the minor child . . . and *376deliver the same to Kevin Joseph Sweeney, until further order of court.”