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DAY v. HATTON et al.; and vice versa.
DUCKWORTH, Chief Justice.
Habeas corpus. Before Judge Guess. DeKalb Superior Court. March 24, 1954.
1. Where the putative father of an illegitimate child sought and obtained a decree of a Tennessee court declaring him to be the father of such child and creating the relationship of parent and child between the petitioner and the child, the decree showing on its face that it was an ex parte proceeding, it will not be given effect in this State as against the mother, where she was not made a party in the proceeding, was not served, did not appear and plead, or otherwise waive service or consent to such decree or have notice thereof, as it is violative of the due-process clauses of the State and Federal Constitutions. Code (Ann.) 1-815, 2-103. See also Towns v. Springer, 9 Ga. 130; Mobley v. Mobley, 9 Ga. 247; Milner v. Gatlin, 139 Ga. 109 (76 S. E. 860); McAlhany v. Allen, 195 Ga. 150 (5) (23 S. E. 2d 676).
2. Where, as here, in a contest between the admitted father of an illegitimate child and third persons, the mother being the only recognized parent (Code 74-203), and having voluntarily released her parental right of custody and control to the third persons (Code 74-108(1)), the discretion reposed in the trial court in a habeas corpus hearing under Code 50-121 is not arbitrary, but should be exercised in favor of the party having the legal right unless the interest and welfare of the child justifies an award to another. Butts v. Griffith, 189 Ga. 296 (5 S. E. 2d 907); Fowler v. Fowler, 199 Ga. 453 (9 S. E. 2d 760); Watkins v. Terrell, 196 Ga. 651 (27 S. E. 2d 329). Therefore, since it is admitted that the defendants are fit and proper persons and they have the legal right to the child by agreement with the mother, (he only recognized parent, (he court did not err in awarding custody to them is against the father of the illegitimate child. Eaves v. Fears, 131 Ga. 820 (64 S. E. 269).
Thomas O. Davis, Owen & Bolton, Davis & Stringer, contra.
Augustus M. Roan, David H. Ansley, for plaintiff in error.
ARGUED JUNE 16, 1954 -- DECIDED JULY 13, 1954.
Saturday May 23 03:31 EDT

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