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Habeas corpus. Cobb Superior Court. Before Judge Ingram.
DUCKWORTH, Chief Judge.
This record shows that an Oklahoma court in 1964 when the divorce was granted awarded "temporary" custody of the four children to the mother; that in 1965 that court awarded custody to the father; that later that court by order authorized the father to carry the children to Georgia where he was working upon giving a bond to insure his observing the decree awarding custody with visitation rights in the mother; that the Oklahoma court in 1966, claiming that it had retained jurisdiction, and, in spite of the father's plea to its jurisdiction over him or the children, all of whom were then residing in Georgia, entered another decree awarding custody to the mother. Based upon this latter decree the mother brought this application for habeas corpus in the Georgia court against her former husband seeking to require him to produce the persons of the said minor children illegally by him. She invoked the full faith and credit clause of the United States Constitution, and the husband pled the 1965 Oklahoma as res judicata. The trial judge ruled against to plea of res judicata, but awarded the children to the father, finding that the interest and welfare of the children would be best served thereby, and discharged him from the writ of habeas corpus theretofore issued by the court. From this judgment awarding custody the former wife appeals.
There are many complex questions involved in the Oklahoma court's numerous orders or judgments such as, full faith and credit, power of that court to retain jurisdiction, res judicata, and jurisdiction of the father and children who were domiciled in Georgia. But we put all those questions aside because, even conceding that the mother had the right of custody in virtue of that court's judgments, this record authorized the ruling of the trial judge in this case to find as he did that the best interest and welfare of these children will be served by giving the father custody. The evidence also shows changes in conditions affecting the welfare of the children, to wit: The parents reside in different States; the children are attending school, church and Sunday school in Georgia; and more and better parental control and care have been shown during their stay in Georgia. The judge could easily find that to uproot the children from these beneficial conditions would be harmful to them. The fundamental basis for fixing custody as between parents is the welfare of the children. Code Ann. 74-107 (Ga. L. 1957, pp. 412, 413; 1962, pp. 713, 715); Willingham v. Willingham, 192 Ga. 405, 406 (1) (15 SE2d 514); Lynn v. Lynn, 202 Ga. 776 (44 SE2d 769); Adams v. Adams, 206 Ga. 881, 882 (2) (59 SE2d 366); Porter v. Chester, 208 Ga. 309 (4) (66 SE2d 729); Barnes v. Tant, 217 Ga. 67 (121 SE2d 125). This principle is controlling whether in fixing the original custody or in changing custody because of change in conditions.
Since conditions were shown that would authorize the custody award here made, either as an original decree or as a change, it is obvious that no purpose would be served by a long and difficult "wading through" the questions we have put aside.
Judgment affirmed. All the Justices concur.
Scott S. Edwards, J. William Gibson, Gary W. Hatch, for appellee.
Gerstein & Carter, Hugh R. Powell, Jr., for appellant.
Friday May 22 19:08 EDT

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