Where the mother of a child, to whom custody has been awarded by a divorce decree, dies, the prima facie right of custody automatically inures to the father. Chapin v. Cummings, 191 Ga. 408, 412 (12 S. E. 2d, 312); Girtman v. Girtman, 191 Ga. 173, 181 (11 S. E. 2d, 782); Hill v. Rivers, 200 Ga. 354, 357 (37 S. E. 2d, 386); Raily v. Smith, 202 Ga. 185 (42 S. E. 2d, 491). In such circumstances the father's right to custody can be lost only by one of the grounds provided under Code 7-108, 74-109, or 74-110; and, unless so lost, the discretion reposed in the trial judge under Code 5-121 does not apply. Bond v. Norwood, 195 Ga. 383 (24 S. E. 2d, 289); Morris v. Grant, 196 Ga. 692 (27 S. E. 2d, 295). Accordingly, in a habeas corpus proceeding between the father and the maternal grandparents of the child, where there was no evidence that the father had lost parental control, it was error for the trial judge to award the custody of the child to the maternal grandparents.
Clarence Baynes instituted in Bartow Superior Court, against Rose Cowart and H. A. Cowart, a habeas corpus proceeding to recover the custody of his minor daughter.
The evidence on the trial of the controversy between the father and the maternal grandparents of the 2 1/2-year-old child developed the following facts: Petitioner and Betty Cowart were married on July 4, 1947. Linda Faye Baynes was born on June 21, 1949. The mother and father were divorced in July, 1950, and the child was awarded to her mother. Under the decree the petitioner was required to pay $12.50 per week as support of his child. Subsequently the mother, along with the child, resided with the maternal grandparents. The mother died on March 31, 1952, at which time the petitioner had paid more than one-half of the alimony awarded for the support of the child. Since the separation the child has lived with her maternal grandparents, and she is happy in their home. They provided her with food and clothing when the petitioner failed to make the alimony payments. The maternal grandparents and the petitioner are fit and proper persons to have custody of the child.
After hearing evidence, the trial judge ordered that the custody of the child be retained by the maternal grandparents with the right of the father to have the child visit him at stated times. The father excepted.