dissenting.
I respectfully dissent to Division 2 of the majority opinion. OCGA § 19-9-23 (c) is inapplicable to this case because the mother has not raised nor asserted any claim or counterclaim for a change in legal custody in response to this habeas action. The habeas court’s decision to leave the child with his mother was an unprompted exercise of its own discretion pursuant to OCGA § 9-14-2 which *552unequivocally provides:
In all writs of habeas corpus sought on account of the detention of a spouse or child, the court on hearing all the facts may exercise its discretion as to whom the custody of the spouse or child shall be given and shall have the power to give the custody of a child to a third person.
(Emphasis supplied.) Our decision in Hutto v. Hutto, 250 Ga. 116, 117 (296 SE2d 549) (1982) failed to reconcile this statutory mandate and what was, at that time, the newly enacted Child Custody Intrastate Jurisdiction Act. Hutto also did not concern or contemplate facts as in the case at bar where the non-legal custodial parent is innocent of any wrongdoing or intentional manipulation of the custody terms awarded in the divorce decree. Indeed, in Hutto, the non-legal custodial parent acted without any authority, unilaterally removing the child from school and withholding her from the legal custodian. In this case, the child came into the mother’s custody by a lawful order. Thus, this case may be distinguished from Hutto.
The majority’s insistence that OCGA § 19-9-23 (c) applies in this case also leads to an unjust result. The child has not lived with his father since 2001 when the child was removed from his father’s care on suspicion of deprivation. His mother did not improperly abscond with the child, but took custody of him by lawful order of the juvenile court and, presumably in reliance on that order, the child has been living in the mother’s care since 2002. For over six years, the father has done nothing to challenge the validity of the juvenile court order or to otherwise assert his rights as a legal custodian.1 Now the child’s life will be significantly disrupted and the mother penalized in favor of a technicality as “reward” for the father’s lack of diligence. Such result does nothing to further the goal of Georgia’s Child Custody Intrastate Jurisdiction Act to prevent parental kidnapping.
*553Decided June 15, 2009. Rainwater & Harpe, David N. Rainwater, J. Mitchell Gibbs, for appellant. Dewey N. Hayes, Jr., for appellee.Accordingly, in the particular circumstances of this case, I would remand the matter to allow the habeas court to exercise its discretion to determine custody pursuant to OCGA § 9-14-2 by using the following standard:
[I]n order to change that award of custody [made in a divorce decree] the trial court does not necessarily have to find that the legal custodian has forfeited [his] parental rights under [OCGA §§ 19-7-1 and 19-7-4], In order to change custody from one parent to the other, “[t]here must be a showing that the party to whom custody was originally awarded is no longer able or suited to retain custody or that the conditions and circumstances surrounding the child have so changed that the welfare of the child would be enhanced by modifying the original judgment.” [Cit.]
Dearman v. Rhoden, 235 Ga. 457, 458 (3) (219 SE2d 704) (1975) (emphasis in original), overruled on other grounds, Matthews v. Matthews, 238 Ga. 201 (232 SE2d 76) (1977).2
The first opportunity to challenge the juvenile court order would have been by appealing the order within thirty days of its entry on June 20, 2002, but the father did not seek an appeal. The father’s second opportunity to act on his legal rights came two years later in June 2004 when the juvenile court order purportedly expired per OCGA § 15-11-58.1; however, appellant did nothing to assert his rights for almost four more years. “The stability of the family and of society demands that one who intends to attack an apparently valid [domestic relations decree] . .. should proceed with the utmost promptness.” Amerson v. Vandiver, 285 Ga. 49, 50 (673 SE2d 850) (2009) (the equitable doctrine of laches applied to prohibit the set aside of a settlement agreement wherein father agreed to the termination of his parental rights and where father waited four years to move to set aside); Howington v. Howington, 281 Ga. 242 (1) (637 SE2d 389) (2006); Ehrhart v. Brooks, 231 Ga. 272 (201 SE2d 464) (1973) (claimant, after four years, was barred by laches from seeking to set aside adoption).
I respectfully disagree that Dein v. Mossman, 244 Ga. 866 (262 SE2d 83) (1979), cited by the majority, sets forth the relevant standard to be used because it is distinguishable insofar as it concerns a habeas proceeding in which custody is disputed between a parent and a third party in an underlying adoption in which the parent had agreed to terminate her rights.