Opinion
35061.
SUBMITTED JUNE 22, 1979.
DECIDED SEPTEMBER 7, 1979.
Habeas corpus; custody of child. Floyd Superior Court. Before Judge Burtz, Senior Judge.
Ronald G. Shedd, for appellant.
James A. Satcher, Jr., for appellee.
The mother had been awarded a divorce decree and custody of the child by publication in Alabama. The child was not present there at the time. She then filed this habeas corpus action seeking possession of the child from his father in Georgia. He counterclaimed for custody, which the trial court granted. The mother appeals. We affirm.
The mother contends that under Matthews v. Matthews, 238 Ga. 201 ( 232 S.E.2d 76) (1977), requiring that suits for change of custody be litigated in the domicile of the custodial parent, the habeas court had no authority to entertain the father's counterclaim for custody. She, however, relies on the Alabama divorce decree awarding her custody to maintain her own status as legal custodian. It is uncontested that the Alabama decree was based on service by publication and that custody was awarded without the child's presence. It is not, under our law, entitled to full faith and credit. Boggus v. Boggus, 236 Ga. 126 ( 223 S.E.2d 103) (1976); Stallings v. Bass, 204 Ga. 3 ( 48 S.E.2d 822) (1948). Thus, the mother is not the legal custodian of the child and Matthews, supra, does not apply. Simmons v. Simmons, 243 Ga. 128 ( 252 S.E.2d 908) (1979). The mother and father had equal status before the habeas court, Code Ann. § 74-107 (a) (Supp. 1978), and it properly awarded custody under the best interests of the child standard, Code Ann. § 50-121. Sanders v. Sanders, 242 Ga. 641 ( 250 S.E.2d 488) (1978).
There is no merit to the mother's contention that evidence prior to her divorce was erroneously admitted for the court's consideration. This is an original contest for custody and evidence tending to show her present unfitness was properly considered by the habeas court. Daniels v. Daniels, 213 Ga. 646 ( 100 S.E.2d 727) (1957) and others cited by the mother are inapposite since there has been no prior custody award and thus no res judicata effect. The evidence supports the trial court's decision awarding custody of the child to the father. Murphy v. Murphy, 238 Ga. 130 ( 231 S.E.2d 743) (1977).
Judgment affirmed. All the Justices concur.