This case involves the question whether a suit in the nature of habeas corpus to change a decree of custody may be brought against a custodial parent by a noncustodial parent in the county in which the noncustodial parent resides. Don Louis Matthews and Marietta Fish Matthews, the parents of five minor children, were divorced in Floyd County, Georgia, and the mother was given custody. They then moved to Florida. In July of 1976, the father went to Florida to bring the children to Georgia for a month's visit as agreed in a divorce decree. When the mother came to Georgia to return them to their home in Florida, she was served with the father's petition for change of custody. The mother filed a plea to the jurisdiction and motion to dismiss, which the trial court granted, and the father appeals. We affirm for the reason that this court finds as a matter of public policy that a noncustodial parent should not be able to entice the custodial parent into his jurisdiction for purposes of relitigating questions of custody. See Justice Hill's dissent in Dearman v. Rhoden, 235 Ga. 457, 460 (219 SE2d 704) (1975).
The father here has filed a petition for change of custody in the nature of habeas corpus. That is to say, the parent without legal custody has instituted a suit in the nature of habeas corpus against the parent with legal custody to obtain a change in legal custody. Although this is not a habeas corpus in the typical sense, it is the procedure used in Georgia to effectuate a change in custody established by a decree of divorce. Code Ann. 50-121, 74-106, 74-107.
There is, however, a line of cases where the county of the noncustodial parent has been recognized as a proper forum for such suits. Dearman v. Rhoden, supra; Padgett v. Penland, 230 Ga. 824 (199 SE2d 210) (1973)
; Glover v. Sink, 230 Ga. 81 (195 SE2d 443) (1973)
; Smith v. Smith, 229 Ga. 580 (193 SE2d 599) (1972)
; Dwyer v. Krelstein, 211 Ga. 296 (85 SE2d 432) (1955)
These cases have generally arisen in two situations: (1) where an out-of-state custodial parent enters that county to retrieve his child, and is personally served or waives the requirements of personal jurisdiction, (2) where a nonresident custodial parent, either out of state or from another county, files a petition for habeas corpus to regain possession of his child. In both situations, the superior court has subject matter jurisdiction of habeas corpus and the child (the res) is physically present there. 2
In the former case, personal jurisdiction and venue, because he is an out-of-state resident, are satisfied by personal service in that jurisdiction. 3
Dearman v. Rhoden, supra. In the latter, these factors are satisfied on the theory that the custodial parent has submitted himself to that court's jurisdiction by filing his suit there, 4
to which the noncustodial parent then counterclaims seeking change in custody. Padgett v. Penland, supra; Glover v. Sink, supra; Dwyer v. Krelstein, supra (all involving an out-of-state custodial parent who filed habeas corpus in the noncustodial parent's county), and Smith v. Smith, supra (involving a Georgia resident from another county, who also filed habeas corpus). See generally McGough & McGough, Domestic Relations, 27 Mercer L. Rev. 79 (1975); 28 Mercer L. Rev. 97 (1976).
The case now before us falls into this rule because the mother, from Florida, has come into the noncustodial parent's jurisdiction to retrieve her children. We, however, as a matter of public policy, decline to follow these cases, which allow the noncustodial parent to relitigate custody in his own jurisdiction.
This court is concerned with the number of cases in which children are illegally seized or illegally detained at the end of visitation periods by their noncustodial parents, as well as those where a parent is personally served with a petition when he arrives to return his children home, as in this case. We believe that by denying these parents a convenient forum in which to relitigate custody, these practices may be reduced or stopped altogether. It is thus in the public interest to discourage such conduct without any prejudice whatsoever to the noncustodial parent's right to bring such a petition where the legal custodian, and the children, reside. 5
Therefore, since the mother is not amenable to suit in the father's jurisdiction, the trial court properly dismissed his petition. If the trial court's decision is correct for any reason, it will be affirmed.
Brinson, Askew & Berry, C. King Askew, for appellant.