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UNDERCOFLER, Presiding Justice.
Custody of child. Elbert Superior Court. Before Judge Williford.
Diane Suttles Todd filed a complaint for divorce against Glenn E. Todd. A divorce was granted on the ground that the marriage was irretrievably broken. The evidence was heard by the trial court without a jury. Custody of the 2 1/2-year-old daughter was awarded to the mother for the months of June through August and to the father for the other nine months with visitation rights in each parent during the other's period of custody. The mother appeals to this court on the issue of custody only. Held:
As between the parents neither has a prima facie right of custody and the judge can award custody to either parent within his discretion. Code Ann. 30-127 (as amended, Ga. L. 1962, pp. 713, 714). The evidence must demand a contrary verdict before we will reverse the discretion of the trial court. The evidence in this case does not demand a contrary verdict.
Although the husband testified as to the wife's adultery contrary to the public policy of this state ( Bartlett v. Bartlett, 228 Ga. 541 (1) (186 SE2d 754)), there was other evidence of such conduct. Under these circumstances and in view of the fact that the mother is given custody for the three months during the summer with visitation periods during the father's custody, the judgment is affirmed.
Heard, Leverett & Adams, E. Freeman Leverett, James D. Hudson, for appellee.
William E. Shurling, III, for appellant.
ARGUED MARCH 10, 1975 -- DECIDED APRIL 8, 1975.
Friday May 22 11:03 EDT

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