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MOCK v. MOCK.
45658.
PER CURIAM.
Divorce, etc. Liberty Superior Court. Before Judge Harvey.
In this case the trial court found both parents equally fit to raise the minor child. However, the trial court granted custody of the child to the father because of his further finding that the mother was at fault in causing the divorce by her adulterous conduct. The trial court's ruling was based on OCGA 19-9-1(a) which provides in part: "In all cases in which a divorce is granted, the party not in default shall be entitled to the custody of the minor children of the marriage." However, this part of the statute is overridden by the rule that "[a]s between parents the right of custody depends upon what will promote the welfare of the children." Gunnells v. Gunnells, 225 Ga. 188, 189 (1) (167 SE2d 138) (1969).
While the trial court may consider the conduct of the parties on the issue of custody, see Harris v. Harris, 240 Ga. 276, 277 (240 SE2d 30) (1977), the court ultimately must decide the custody question based on the best interest of the child.
We remand the case to the trial court for further consideration of the custody question in light of this opinion. See Lifsey v. Lifsey, 256 Ga. 613 (351 SE2d 637) (1987).
John E. Pirkle, for appellee.
Dubberly & McGovern, Joseph D. McGovern, for appellant.
DECIDED JUNE 23, 1988 -- RECONSIDERATION DENIED JULY 13, 1988.
Thursday May 21 12:42 EDT


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