1. The jurisdiction of the juvenile court extends only to those minors who are residents of the county in which the court is located.
2. The evidence supported a finding that the legal father had not relinquished his parental authority.
3. The finding as to who was the legal father of the children was authorized by the evidence.
4. After the court decided it did not have jurisdiction of the case any further order was a mere nullity.
Floyd Gene Goode filed a petition in the Fulton County Juvenile Court seeking custody of Valicia Diane Gray, age two, and Gwendolyn Evette Goode, age six months. The petition alleged: that Goode was the putative father of the two children; that Essie Lou Giles Gray was the deceased mother of the two children; that the two children were presently in the possession of their maternal grandmother.
Lue Della Giles, the appellant, filed a petition seeking custody for herself of Barbara Lynett Gray, age nine, Robin Denise Gray, age eight, and Darrell Bernard Gray, age five, and seeking custody of Valicia Gray and Gwendolyn Goode for a maternal aunt, Emma Jean Lucas. The petition alleged that all five of the children were in the possession of appellant, who resides in Fulton County; that Harold Gray, husband of Essie Gray, was the father of Barbara, Robin and Darrell Gray; that Floyd Goode was the putative father of Valicia Gray and that the father of Gwendolyn Goode was unknown.
A hearing on these two petitions was held in the Fulton County Juvenile Court. At this hearing Harold Gray testified that he was legally married to Essie Gray, the undisputed mother of the five children, during the time that each of the children was born; that he is a resident of LaGrange, Georgia, which is in Troup County. He was never examined by appellant concerning his alleged abandonment and relinquishment of parental control over the children, nor was he examined concerning whether he ever saw or visited his wife during the time that they were separated. Gray testified that he did not know who the father of Valicia Gray and Gwendolyn Goode was, but stated that his wife had told him that Floyd Goode was the father of Valicia Gray. Floyd Goode testified that he and Essie Gray lived together for three years and that he was the father of Valicia Gray and Gwendolyn Goode.
The court found that Harold Gray was the legal father of the five children, that he resided outside the boundaries of Fulton County and that, therefore, the children were not residents of Fulton County. The court then ruled that it had no jurisdiction to determine the children's custody since the Juvenile Court Act confers jurisdiction only as to children who reside in the county in which the court is located. The order also stated that the children were remanded to Harold Gray. It is from this order that appellant brings this appeal.
1. The appellant contends that the trial judge erred in holding that it did not have jurisdiction because the legal residence of the children was in another county. Code Ann. 24-2408 (Ga. L. 1951, pp. 291, 297; 1953, Nov. Sess., pp. 87, 89; 1955, p. 610; 1956, p. 603; 1968, pp. 1013, 1019) provides that the juvenile court shall have original jurisdiction concerning any child under seventeen years of age "living or found within the county." Counsel for the appellant argues that this means that it is not necessary for the child's residence to be within the county for the juvenile court to have jurisdiction. "However, both this court and the Supreme Court have expressly held that the jurisdiction of a juvenile court, being civil in nature, extends only to those minors who are residents of the county." Ingle v. Rubenstein, 112 Ga. App. 767
, 772 (146 SE2d 367
2. The appellant argues that the trial judge should have held that Harry Gray had relinquished his parental authority by allowing them to live in Fulton County with his wife from whom he was separated. Code 79-404. While the appellant contends that the trial judge did not rule on this point, the effect of his order was to hold that Gray had not relinquished his authority. The trial judge's ruling was not in conflict with the evidence.
3. Counsel for the appellant argues that the trial judge erred in holding that Gray was the legal father of all the children. There was sufficient evidence to support a finding that Gray was the legal father of the children. Gray testified that he was married to the mother of the children when each of them was born. While the evidence showed that they were not living together part of this time, there was no proof that there was not access during all of that period. Smith v. Smith, 224 Ga. 442
, 444 (162 SE2d 379
); English v. English, 119 Ga. App. 570
, 571 (168 SE2d 187
4. That portion of the trial judge's order which remanded the children to Gray was error. After the court decided it did not have jurisdiction of the case any further order of the court was a mere nullity.
EVANS, Judge, concurring specially.
I concur specially in the majority opinion which holds that "the jurisdiction of the juvenile court extends only to those minors who are residents of the county in which the court is located." I do so because I feel bound under the rule of stare decisis by previous rulings of this court, including one in which the writer joined Judge Whitman's dissent (see Allstate Ins. Co. v. Anderson, 121 Ga. App. 582 (174 SE2d 591)
). However, were I not bound by earlier decisions of this court, I would hold that the jurisdiction of the juvenile court extends not only to children living within the county but also to those who are found within the county, provided their "environment or associations are such as to injure or endanger . . . morals and general welfare . . ." See 9, Juvenile Court Act, as amended, Ga. L. 1951, pp. 291, 297; 1953, Nov. Sess., pp. 87, 89; 1955, p. 610; 1956, p. 603; 1968, pp. 1013, 1019 (Code Ann. 24-2408).
This would seem to bring these children squarely within the jurisdiction of the Juvenile Court of Fulton County.
I am authorized to state that Presiding Judge Jordan also concurs in this special concurrence.