Lewis v. Winzenreid , 263 Ga. 459 ( 1993 )

Carley, Justice.

In 1984, appellee-father and appellant-mother were divorced in Texas and custody of their minor child was awarded to appellee. In 1991, appellant did not return the child to appellee in Texas at the scheduled end of a limited visitation period. In 1992, appellee secured Georgia counsel through whom he demanded that appellant return the child. Appellant did not accede to appellee’s demand, but presented to the Juvenile Court of Colquitt County a petition alleging that the child was deprived. The juvenile court approved appellant’s petition for filing and granted her temporary custody of the child pending a hearing on the issue of the child’s alleged deprivation.

Appellee filed a petition for a writ of habeas corpus in the Superior Court of Colquitt County challenging appellant’s entitlement, under the juvenile court’s order, to continue to hold the child in contravention of his right to legal custody under the Texas decree. The superior court issued an order temporarily restraining appellant from pursuing her deprivation petition in the juvenile court and, after a hearing on appellee’s petition, granted him a writ of habeas corpus. Appellant appeals from that order pursuant to this court’s grant of her application for a discretionary appeal.

Relying on Chastain v. Smith, 243 Ga. 262 (253 SE2d 560) (1979), appellant urges that the superior court erred in granting appellee’s petition. In Chastain, the mother of the child had died and the grandmother petitioned the juvenile court for termination of the parental rights of the father. The father was served by publication and the juvenile court made an ex parte award of temporary custody to the grandmother. The father then filed a petition for a writ of habeas corpus. The superior court stayed the juvenile court proceedings and, after a hearing, entered an order finding that the grandmother “ ‘is holding the child under a valid court order of the Juvenile Court which has yet to be challenged, and that the remedy of habeas corpus does not lie.’ ” (Emphasis supplied.) Chastain v. Smith, supra at 262. On appeal, this court affirmed.

Where the petition in the Juvenile Court alleges deprivation of the child and if the service of summons is made by publication, the Juvenile Court is authorized to enter an interlocutory order of disposition. [Cit.] Any challenge to the service or to the temporary order must be made by the [father] in the Juvenile Court where the proceedings are still pending.

(Emphasis supplied.) Chastain v. Smith, supra at 262.

In the instant case, unlike in Chastain, appellee did not merely attack the manner or sufficiency of service of appellant’s deprivation petition and the superior court did not find that the juvenile court’s award of temporary custody to appellant was valid. Instead, appellee attacked the jurisdiction of the juvenile court to make the award of temporary custody to appellant and the superior court found that the award of the juvenile court was not a valid order. Accordingly, the issue presented for resolution in the instant case is whether the superior court erred in concluding that the juvenile court lacked jurisdiction to make a valid award of temporary custody to appellant.

“A juvenile court is a court of special and limited jurisdiction, and its judgments must show on their face such facts as are necessary to give it jurisdiction of the person and subject matter. [Cits.] If the order of a juvenile court fails to recite the jurisdictional facts, the judgment is void. [Cits.]”

(Emphasis in original.) Lockhart v. Stancil, 258 Ga. 634 (373 SE2d 355) (1988). “A judgment void because of lack of jurisdiction of the person or subject matter may be attacked at any time.” OCGA § 9-11-60 (f). See Murphy v. Murphy, 263 Ga. 280 (430 SE2d 749) (1993).

The juvenile courts of this state have exclusive original jurisdiction with regard to any child “[w]ho is alleged to be deprived. . . .” OCGA § 15-11-15 (a) (1) (C).

“Deprived child” means [, in relevant part,] a child who: Is without proper parental care or control, subsistence, education as required by law, or other care or control necessary for his physical, mental, or emotional health or morals. . . .

(Emphasis supplied.) OCGA § 15-11-2 (8) (A). Nothing in the petition filed by appellant in the juvenile court alleged that the child is “deprived” within the meaning of OCGA § 15-11-2 (8) (A). Her petition alleged, at most, that the child had been deprived while in appellee’s custody in Texas and that the child might once again become deprived if returned to appellee’s custody in Texas. Thus, appellant’s petition alleged that the child is not deprived so long as she continues to hold the child in Georgia in.contravention of appellee’s legal custody in Texas. By her deprivation petition, appellant sought to maintain the status quo of the child’s alleged non-deprived condition in Georgia, not to ameliorate the child’s alleged current deprived condition within this state. The juvenile courts of this state have jurisdiction with regard to a child who is alleged to be deprived, not a child who has allegedly been or will allegedly be deprived while in the legal custody of his non-resident parent.

“Deprived child” is also defined as a child who “[fi]as been abandoned by his parents or other legal custodian. . . .” (Emphasis supplied.) OCGA § 15-11-2 (8) (C). Considering that appellant was holding the child in contravention of appellee’s right to legal custody under the Texas decree, there is considerable doubt whether she would have any standing to allege that the child was “deprived” during that period by virtue of appellee’s abandonment. In any event, however, nothing in the petition filed by appellant in the juvenile court alleged that the child is “deprived” within the meaning of OCGA § 15-11-2 (8) (C). Indeed, appellant’s petition acknowledged that appellee has legal custody of the child and that her petition was prompted, at least in part, because appellee “has now threatened to take action to get the child and remove the child” to Texas. Such “threats” by appellee, in his capacity as the legal custodian of the child, clearly demonstrate that he had not “abandoned” the child, but was insisting upon his right to exercise legal custody under the Texas decree. The juvenile courts of this state have jurisdiction with regard to a child who allegedly has been abandoned, not a child whose nonresident custodial parent has threatened to enforce his right to legal custody.

In emergency situations, the superior courts of this state do have jurisdiction to entertain actions to modify the child custody award of another state. See Osgood v. Dent, 167 Ga. App. 406, 407 (1) (306 SE2d 698) (1983). If an emergency existed in the instant case, it was in 1991 when appellant first refused to return the child to appellee’s custody in Texas. Rather than seek superior court modification of the Texas decree at that time, however, appellant unlawfully kept the child without judicial sanction and it was not until appellee threatened legal action to enforce his rights as the custodial parent that appellant filed her deprivation petition in the juvenile court. The petition filed by appellant in the juvenile court shows on its face that it involves a custody dispute between appellant, who is attempting to keep the child with her in Georgia, and appellee, who is attempting to enforce his right to legal custody under the unmodified Texas decree. Such custody disputes between parents are not within the exclusive original jurisdiction of the juvenile courts of this state. See Lockhart v. Stancil, supra; In re J. R. T., 233 Ga. 204 (210 SE2d 684) (1974); In the Interest of C. F., 199 Ga. App. 858, 859 (1) (406 SE2d 279) (1991).

It follows that, in the instant case, the superior court was correct in giving no effect to the invalid order of the juvenile court and that the grant of a writ of habeas corpus to appellee must be affirmed.

Although it is true that the juvenile court has exclusive jurisdiction to entertain petitions concerning children alleged to be deprived ([cit.]), the record here shows that [appellant’s petition] was not in the nature of a [valid] deprivation petition. . . .

In the Interest of C. C., 193 Ga. App. 120, 121 (1) (387 SE2d 46) (1989). The juvenile courts of this state should not entertain

deprivation proceedings brought by a non-[custodial] parent to obtain custody from a [non-resident custodial] parent, for there is a great likelihood in such a situation that the allegations of deprivation will be motivated less by concern for the child than by a desire to avoid the more stringent standard of proof applicable in a [modification] action [in the superior court], wherein a [non-custodial] parent is required to establish [a material change of circumstances substantially affecting the interest and welfare of the child arising since the original decree], [Cits.]

In re R. R. M. R., 169 Ga. App. 373, 375 (2) (312 SE2d 832) (1983).

Judgment affirmed.

All the Justices concur, except Benham and Hunstein, JJ., who concur specially.