Supreme Court of Georgia, 1952

Baynes v. Cowart

Baynes v. Cowart
Supreme Court of Georgia · Decided October 15, 1952 · Almand, Candler
72 S.E.2d 716; 209 Ga. 376; 1952 Ga. LEXIS 500 (South Eastern Reporter, Second Series)

Baynes v. Cowart

Opinion

Almand, Justice.

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 §§ 74-108, 74-109, or 74-110; and, unless so lost, the discretion reposed in the trial judge under Code § 50-121 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.

Judgment reversed.

All the Justices concur, except Candler, J., who dissents.

Case-law data current through December 31, 2025. Source: CourtListener bulk data.