In the Supreme Court of Georgia



                                     Decided: June 6, 2016


                      S16A0200. BALES v. LOWERY.


      NAHMIAS, Justice.

      Jennifer Bales appeals the trial court’s order denying her petition for

habeas corpus seeking the return of her older daughter from the child’s father,

Steven Lowery. We conclude that the trial court erred in denying the petition

and therefore reverse.

      1.    Jennifer Bales (Mother) and Steven Lowery (Father) divorced in

Wilkinson County in 2013. The divorce decree, which incorporated the parties’

settlement agreement, awarded them joint legal and physical custody of their

two daughters; said that “[c]ustodial time shall be shared between the parties to

allow for the children to have equal time with both parents and the parents shall

cooperate with each other to reach this goal,” but specified that the girls would

reside with Mother during the school year; and gave Mother final decision-

making authority in matters involving the girls’ education. The decree also
included a default visitation schedule that gave Father the girls for “the entirety

of the summer break from school” except for one week, but required him to

return the children to Mother five days before the start of the new school year.

      The decree also included an unusual provision giving Husband the right

to “take temporary physical custody immediately” should “Wife be incarcerated

for any reason” or should “either of the minor children advise both parents that

she wishes to reside on a full time basis with [Husband].” Husband then would

be required to “file, within 30 days, a petition in the appropriate court, for the

change of custody of the minor child(ren) to be approved by the Superior

Court,” and “[i]n the intervening time, the custodial time assigned to [Husband]

shall be applicable to [Wife], unless she is incarcerated, until and unless the

Court rules otherwise.” Both parties were unemployed at the time of the

divorce, and in light of the time-sharing arrangement contemplated by the

divorce decree, neither was ordered to pay the other child support.

      At some point, Father moved to Baldwin County, and Mother moved to

Henry County. Mother allowed the parties’ older daughter, Jamie, to reside with

Father in Baldwin County and attend school there during the 2013-2014 and

2014-2015 school years, but disagreements about custodial time and the girls’

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proper care eventually arose, and Mother decided not to allow Jamie to reside

with Father in Baldwin County and attend school there during the 2015-2016

school year. Instead, Mother decided that, as provided in the divorce decree,

Jamie would reside with Mother and attend public school in Henry County with

her younger sister. However, Father refused to return Jamie to Mother at the

end of the 2015 summer school break.1

       On August 6, 2015, Mother filed a petition for writ of habeas corpus

against Father in the Baldwin County Superior Court. Both parties appeared

with counsel at a hearing held the next day, and Father’s attorney told the trial

court (apparently inaccurately) that Father had filed a petition for change of

custody in Henry County.2 The court interviewed Jamie outside the presence of

the parties and their attorneys and then informed them that the girl – who was



       1
          During the 2015 summer break, Mother also filed an action in Baldwin County seeking to
modify the divorce decree’s default visitation schedule and to impose a child support obligation on
Father. This action, which apparently remains pending, has not resulted in any modification of the
decree’s provisions awarding Mother custody of the children during the school year and control over
educational decisions.
       2
           According to the Henry County Superior Court’s online docket, Father did not file a
custody modification petition there until November 16, 2015; that petition is still pending. It appears
that in April 2015, Father filed a contempt petition against Mother in Henry County relating to his
visitation with the younger child. That petition was transferred to Wilkinson County, where it
apparently remains pending.

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then 11 years old – said that she wanted to reside with Father in Baldwin County

and continue going to school there. The court then announced that it would

deny Mother’s habeas petition and instructed the parties to resolve their custody

dispute in the Henry County modification proceeding that Father supposedly

had already filed.

      On August 13, 2015, the trial court signed an order denying Mother’s

habeas petition, although the order was not filed until August 20. In the order,

which was prepared by Mother’s lawyer, the court found that the new school

year had started; that Mother had a valid, unmodified child custody order that

specified that both girls would reside with her during the school year; that

Mother had final decision-making authority regarding the girls’ education; and

that she had decided that both girls would attend public school in Henry County

where Mother lives.

      Mother filed a timely notice of appeal to this Court. Father, who is

proceeding pro se on appeal, did not file a brief here.

      2.    When a parent withholds a child from the other parent in violation

of a valid child custody order, the other parent may seek to secure the return of

the child by filing a habeas corpus petition in the judicial circuit where the child

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is allegedly being detained illegally. See OCGA §§ 9-14-1 (b) (“Any person

alleging that another person in whom for any cause he is interested is kept

illegally from the custody of the applicant may seek a writ of habeas corpus to

inquire into the legality of the restraint”), 9-14-4 (requiring presentation of a

habeas petition to a “judge of the superior court of the circuit in which the

illegal detention exists” or to the county probate court judge); Alvarez v. Sills,

258 Ga. 18, 18-19 (365 SE2d 107) (1988). As we have explained before, the

trial court,

      upon hearing a writ of habeas corpus for the detention of a child, is
      vested with a discretion in determining to whom its custody shall be
      given. Such discretion should be governed by the rules of law,
      [however,] and be exercised in favor of the party having the prima
      facie legal right to custody of the child unless the evidence shows
      that such person has lost the right to custody through one of the
      ways recognized in [OCGA §§ 19-7-1 and 19-7-4], or through
      unfitness.

Douglas v. Douglas, 285 Ga. 548, 550-551 (678 SE2d 904) (2009) (citations

and punctuation omitted). Since statutory changes made in 1979, habeas corpus

cannot be used to seek a change in child custody, and even when a legal

custodian brings a habeas action, “no complaint seeking to change legal custody

or visitation rights may be made ‘[a]s a counterclaim or in any other manner in


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response to a petition for a writ of habeas corpus seeking to enforce a child

custody order . . . .’ OCGA § 19-9-23 (c) (1).” Douglas, 285 Ga. at 550.

       Father did not allege, and the trial court did not find, that Mother had lost

her right to custody of their older daughter through unfitness or one of the legal

grounds set forth in OCGA §§ 19-7-1 and 19-7-4, such as a voluntary contract

releasing parental rights to a third person, consent to an adoption, failure to

provide necessaries, abandonment, or cruel treatment. Nor did Father allege, or

the trial court’s order find, that school-year custody of the child had been

transferred to Father under the decree’s odd temporary custody provision. The

trial court was therefore required to exercise its discretion in favor of Mother as

the child’s prima facie custodian during the school year.3 See Douglas, 285 Ga.

at 551. The court was not entitled to disregard the custody provisions of the

divorce decree on the ground that there had been a material change in

circumstances warranting modification and that it was in the child’s best interest

to continue residing with Father in Baldwin County. See Hutto v. Hutto, 250


       3
         Accordingly, we need not address Mother’s additional arguments (or decide if they are
cognizable in habeas) that the temporary custody provision is an unenforceable self-executing
change-of-custody provision, and that the trial court erroneously failed to enforce her final decision-
making authority regarding educational matters.

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Ga. 116, 118 (296 SE2d 549) (1982). Accordingly, the trial court erred in not

ordering Father to return Jamie to Mother. See id. If Father wishes to change

the custody provisions of the divorce decree, he may seek to do so through the

modification action that he has filed in Henry County where Mother resides.

See id.

      Judgment reversed. All the Justices concur.




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