The evidence in the instant case is not sufficient to show that the petitioner has relinquished his parental right to custody and control of his minor child. This being true, it was error to award custody to the grandparents, since it does not appear that the petitioner is not a fit and proper person or that the welfare of the child required that custody be awarded to the respondents.
Jack E. Rawdin brought this habeas corpus action against Jack Carl Conner and Maude L. Conner, seeking to recover custody of Jack E. Rawdin, Jr., hereinafter referred to as "Jackie," as he is so called in the record in this case. The respondents answered the petition and produced the child in court in accordance with the writ. At the trial, the undisputed testimony was: that Jack E. Rawdin and Mildred Conner were married in May, 1942; that Jackie was born to them on July 7, 1944; that the respondents were the maternal grandparents of Jackie; that two days after Jackie was born, Jack E. Rawdin, who was and is in the United States Army, was sent overseas; that, when the petitioner returned to the United States, Mildred Conner Rawdin and Jackie were living with the respondents; that it was decided that the petitioner and Mildred Rawdin would get a divorce, and they were divorced, and Jackie was placed in the custody of his mother; that Jackie and Mildred Rawdin continued to live with the respondents until Mrs. Rawdin remarried and they went to live in their new home; that the petitioner remarried in 1946; that he had an allotment sent for the support of Jackie until October, 1949, when he had it canceled, and thereafter he has contributed nothing to Jackie's support; that the petitioner visited Jackie from time to time since the divorce; that on May 30, 1953, the petitioner was notified by Mrs. Conner that Mildred, Jackie's mother, had died on February 10, 1953; and that the petitioner went immediately to see Jackie, and discussions were had as to Jackie's future. What, if anything, was decided at this meeting is disputed.
The undisputed evidence further shows that Jackie visited the petitioner on at least two occasions after the death of his mother, once for a week and once for almost a month; and that, a short time after this last visit, the petitioner was served with a petition for adoption brought by Mr. and Mrs. Conner. It is not disputed that both parties are fit and proper persons to have custody of Jackie, and that either party can and will provide him with a fit and proper home. There is no evidence tending to show that the welfare of the child will best be served by awarding custody to one or the other.
Upon the conclusion of the evidence, it was decreed that custody should remain with the respondents with the right of the petitioner to have Jackie visit him during vacations; and that neither party should take Jackie out of the State for a period longer than two weeks. The court retained jurisdiction. The petitioner excepted to this judgment.
WYATT, Presiding Justice. 1. While it is the general rule that as between parents neither has a prima facie right to custody of a minor child, this rule does not apply as between a parent and a grandparent or grandparents. Hill v. Rivers, 200 Ga. 354 (37 S. E. 2d 386). Upon the death of the mother to whom custody of a minor child has been awarded by a divorce decree, the prima facie right of custody automatically inures to the father. Chapin v. Cummings, 191 Ga. 408 (12 S. E. 2d 312); Girtman v. Girtman, 191 Ga. 173 (11 S. E. 2d 782). In a contest between two parties, both of whom are fit and proper persons, the one having the legal right should prevail. Williams v. Crosby, 118 Ga. 296 (45 S. E. 282).
2. It is clear, under the general rules above stated, that the petitioner (plaintiff in error here), is entitled to have custody of the child here involved unless he has lost his parental power by one of the six means set out in Code 74-108. It is contended that the petitioner has lost his right to parental custody and control, first, by contract.
"It is a well settled rule that, where it is insisted that the father had relinquished his right to the custody and control of his minor child to a third person by a voluntary contract, a clear and strong case must be made, and the terms of the contract, to have effect of depriving him of his control, should be clear definite and unambiguous." Waldrup v. Crane, 203 Ga. 388 (46 S. E. 2d 919). The terms of the alleged agreement by which it is contended that the plaintiff in error lost his right to parental control in this case are disputed. However, since it is a matter within the discretion of the trial judge, if there is any evidence supporting his finding, it will not be disturbed. Therefore, considering the evidence most favorably to the defendants in error, we find the evidence as to the agreement substantially as follows: Mr. Conner testified that, after Mrs. Conner wrote petitioner about Mildred's death, a meeting was held and "that they agreed at this meeting that Jackie would be raised by him and Mrs. Conner because they were his grandparents; that they would have full custody and control of the child, raise him as their own, but Sgt. Rawdin could visit the child whenever he felt like it and have the child visit him during vacation time." Mrs. Conner testified that, "Sgt. Rawdin agreed that she and Mr. Conner rear the child as their own and have full custody and raise him as their own because that is what Mildred wanted; that he would have the right to visit the child as he saw fit. That was a definite agreement and that's why they took the child with them to Augusta . . . This agreement was oral and not in writing." Melvin W. Lee, testified that he was at the meeting; that "Sgt. Rawdin definitely agreed that Mr. and Mrs. Conner could raise the child as their own and have custody and raise as their own; that he never heard Sgt. Rawdin use the words that the Sargeant was giving up his rights as the father, but he got that impression."
Accepting this testimony as true--as we must for purposes of this case--it still fails to meet the requirements of the decisions of this court as to what will constitute such a clear, definite, and unambiguous contract as will deprive a parent of the right to custody and control of his minor child. "There should be, to have authorized the habeas corpus court to find that there was a gift, some evidence of the terms of the contract by which it was claimed that the father relinquished his authority and parental control over his infant son. There is no evidence to show that he agreed to relinquish that control during the years of the child's minority or for any particular period of time; or that he made any stipulation that anything should be done for the child by way of rearing it properly or educating it." Broxton v. Fairfax, 149 Ga. 122, 124 (99 S. E. 292). See also Waldrup v. Crane, supra, and cases cited.
The evidence in the instant case is wholly lacking in any details as to the terms of the alleged agreement by which it is contended the father relinquished his right to custody and control of his minor child. There are no stipulations as to how the child is to be reared or educated, or any terms of the alleged agreement. Under the authority of the above-cited case, an agreement lacking in such details is not sufficient to meet the strict requirements of the law as to what is necessary in order to deprive a parent of his right to parental custody and control of his minor child.
3. It is next contended that the petitioner has relinquished his right to custody and control of the child by his failure to provide necessaries. The evidence is undisputed that the petitioner has not furnished to either the child's mother or the grandparents anything for the support of the child since 1949. There is no evidence that the petitioner was required by the decree granting the divorce and custody of the minor child to the mother to provide anything for the support of the child. He voluntarily made an allotment of $30 per month for the support of his child, which continued until 1949, when he had it stopped. Since that time he has not been asked to contribute anything to the support of the child and has not been informed of the child's need for necessaries.
This court has many times held, under the facts similar to those in the instant case, that the mere failure of a parent to provide support for a minor child when in the possession or custody of the other parent, a grandparent, or other person, when no support is requested or needed, is not such a failure to provide necessaries or such an abandonment as will amount to a relinquishment of the right to parental custody and control. See Hill v. Rivers, supra; Broxton v. Fairfax, supra; and Sloan v. Jones, 130 Ga. 836 (62 S. E. 21). Therefore, the petitioner in the instant case, not having relinquished his right to parental custody and control of the minor child here involved, had a prima facie right to that custody and control; and since the petitioner is a fit and proper person, and since it does not appear that an award of custody to him will be detrimental to the welfare of the child, it was error to award such custody to the respondents.
HAWKINS, Justice, dissenting. Under Code 74-105 it is the duty of a father, who is able to do so, to provide for the maintenance, protection, and education of his child from his own estate, whatever may be its other resources, until majority (Hines v. Mullins, 25 Ga. 696
), unless relieved of this obligation imposed by the law, the father shall lose his parental power and control over the child. McLain v. Smith, 207 Ga. 641
(63 S. E. 2d 663). There was evidence in this case that the father of the child here involved, although able to do so, had contributed nothing towards its support from 1949 up to the time of the institution of the present proceeding, and the trial court was authorized to find that he had thereby lost the right to the custody and control of his son. Therefore, I dissent from the judgment of reversal in this case.
CANLDER, Justice, dissenting. I dissent from the judgment rendered by the majority for the reason stated in a dissenting opinion which Mr. Justice Hawkins has filed, and also upon the ground that the evidence authorized the court to find that the father relinquished parental control over the child in question by a sufficiently definite contract, which he made with the child's maternal grandfather.