Beavers v. Williams

Duckworth, Justice. The question presented for decision in this case is whether or not one appointed guardian of the “person and property” of a minor orphan is entitled to the custody of the ward, and, if so, whether the superior court, on habeas corpus brought by the guardian to obtain possession of the ward, is authorized to award the custody of the ward to another person, in the absence of any change of circumstances occurring since the appointment of the guardian. “The power of the guardian over the person of his ward shall be the same as that of the father over his child, the guardian standing in his place; and in like manner it shall be the duty of the guardian to protect and maintain, and, according to the circumstances of the ward, to educate him.” Code, § 49-201. This section clearly -indicates that a guardian of the person and property of a minor child has the same claim *878 to the custody of the child as the father would have had. We find no decision of this court in which the right of the guardian to the custody of his • ward has been doubted. On the contrary, the cases dealing with the appointment of guardians for minor children show that the paramount duty of the court in such cases is to appoint the person in whose custody the interests and welfare of the child will be best served. Watson v. Warnock, 31 Ga. 716; Walton v Twiggs, 91 Ga. 90 (16 S. E. 313); Churchill v. Jackson, 132 Ga. 666 (64 S. E. 691, Ann. Cas. 1913E, 1203). The rule is stated in 25 Am. Jur. 41, § 62, is follows: “Except under certain circumstances in which the controversy is between a parent and the guardian appointed by a court, the rule is well settled that a guardian of a minor is entitled to the custody of his ward and has such authority over him as is necessary to the proper execution of his duties. To the person of the ward he stands in loco parentis. He may enforce this right by habeas-corpus proceedings or by a proper action in equity.” In the instant case the ward involved is an orphan; and thus we need not consider whether our ruling would be different if a parent were contesting the guardian’s right of custody. See Payne v. Payne, 39 Ga. 174. Armed with letters of guardianship of the person and property of the child, the petitioner brought habeas corpus to obtain the custody of her ward. The respondents, without contending that the guardian was improperly appointed, sought to show that they were proper persons to have the custody, and asked that they be granted custody of the child. No allegation was made in their answer that any change of circumstances had taken place since the guardian had been appointed, and none was shown by the evidence. It appeared on the hearing that both the guardian and the respondents were proper persons to have the custody of the child. The court granted custody to the respondents. This ruling of the court was unauthorized. Courts of ordinary have authority to exercise original, exclusive, and general jurisdiction in all controversies as to the right of guardianship. Code, §§ 24-1901, 49-105. Judgments rendered in the exercise of this jurisdiction can not be collaterally attacked. Sturtevant v. Robinson, 133 Ga. 564 (6) (66 S. E. 890). In the Code, § 50-121, it is provided: “In all writs of habeas corpus sued out on account of the detention of a wife or child, the court, on hearing all the *879 facts, may exercise his discretion as to whom the custody of such wife or child shall be given, and shall have power to give such custody of a child to a third person.” However, this section does not vest in the court a discretion to change a previous judgment awarding custody of the child, in the absence of a change of circumstances involving the welfare of the child, which has taken place since the rendition of such former judgment. Kirkland v. Canty, 122 Ga. 261 (50 S. E. 90); Brooks v. Thomas, 193 Ga. 696 (19 S. E. 2d, 497). In the instant case the judgment of the court of ordinary appointing the petitioner guardian of the minor child adjudicated her fitness to have his custody. Certainly this judgment was final on this question, in the absence of a change of circumstances. Porter v. McCalley, 146 Ga. 594 (2) (91 S. E. 775). The respondents should have asserted in the court of ordinary their claim to custody, by resisting the petitioner’s application for appointment as guardian. It is not clear whether they did this or not, but in any event they can not now avail themselves of defenses which should have been asserted in the court of ordinary. Compare Shiflett v. Dobson, 180 Ga. 23 (177 S. E. 681). It follows that the court erred in refusing to award custody of the ward to the petitioning guardian. Judgment reversed. All the Justices concur.