Watkins v. Terrell

Jenkins, Presiding Justice.

1. In this contest for the custody of a girl of four years, on a habeas-corpus petition by the father against the parents of the deceased mother, and involving an alleged “gift” by the father to such grandparents and the comparative fitness of the parties to have the custody, the legal questions are controlled by the recent rulings in Bond v. Norwood, 195 Ga.

383 ( 24 S. E. 2d, 289 ), and cit. Where a father relinquishes the custody and control of his minor child to another, the latter, if a suitable and proper person to have such custody and control, is legally entitled thereto; and the discretion vested in the judge by the Code, § 50-121, is not free or arbitrary, but is to be governed by the rules of law, and should be exercised in favor of the party having the legal right, unless the evidence shows that such party has lost his right in some way recognized by law. Wrhere the evidence on the controlling issues is in conflict, the discretion of the judge will not be controlled.

2. The controlling issue at the hearing being whether the petitioning father had made a “gift” of the child to the respondent grandparents, and there being abundant evidence that the father had made to the grandparents an absolute relinquishment of his right of custody, that *652 they had accepted such “gift,” and that they were suitable and proper persons, notwithstanding evidence for the petitioner to the contrary on all of these questions, the discretion of the judge in awarding the child to the respondents will not be disturbed.

No. 14642.

October 5, 1943.

G.

W. Westmoreland, for plaintiff.

E. C.

Stark, for defendant.

Judgment affirmed.

All the Justices concur.