Summary
In Praytor, our supreme court considered whether an adoption proceeding, begun by maternal grandparents before the father sought custody of the child in circuit court, would prevent the circuit court from exercising its equity jurisdiction over the custody of the child.
Summary of this case from G.M. v. T.W.Opinion
8 Div. 325.
October 18, 1945. Rehearing Denied November 29, 1945.
Appeal from Circuit Court, Morgan County; Julian Harris, Judge.
Habeas corpus proceeding by Alton W. Praytor against Z. L. Cole and others for custody of a minor child. From a decree dismissing the petition, petitioner appeals.
Reversed and remanded.
W. Marvin Scott, of Cullman, and S. A. Lynne, of Decatur, for appellant.
In respect to infants within its jurisdiction, the powers of a court of equity are original and inherent. Wright v. Price, 226 Ala. 468, 147 So. 675; Fletcher v. Preston, 226 Ala. 665, 148 So. 137; Thomas v. Thomas, 212 Ala. 85, 101 So. 738. The probate court can only make a final order if and when it can be done conformably to the decree of the equity court having jurisdiction of the child. Wright v. Price, supra. Adoption proceedings have no element of a judicial decree. Prince v. Prince, 188 Ala. 559, 66 So. 27; Murphree v. Hanson, 197 Ala. 246, 249, 72 So. 437. A court of equity in which jurisdiction of the person of an infant is acquired has exclusive right to pursue an exercise of such jurisdiction. Wright v. Price, supra.
Kilpatrick Entrekin, of Cullman, for appellees.
Proceeding for adoption in the probate court being shown, the equity court 'properly declined to wrest jurisdiction from the probate court. Glazner v. Jenkins, 237 Ala. 262, 186 So. 475; Ex parte Burch, 236 Ala. 662, 184 So. 694; Anderson v. State, 240 Ala. 169, 198 So. 169; Gay. v. Brierfield Coal Iron Co., 94 Ala. 303, 11 So. 353, 33 Am.St.Rep. 122; Ex parte State ex rel. Attorney General, 150 Ala. 489, 43 So. 490, 10 L.R.A., N.S., 1129, 124 Am.St.Rep. 79; 14 Am.Jur. 444, § 249; 25 Am.Jur. 223, § 108; Wright v. Price, 226 Ala. 468, 147 So. 675; State v. Black, 239 Ala. 644, 196 So. 713; Moss v. Ingram, 246 Ala. 214, 20 So.2d 202. Decree of probate court granting petition of adoptive parents would necessarily award care and custody of infant to adoptive parents, and no other court could wrest from it jurisdiction of the infant acquired under said petition while same is pending. Authorities, supra; Cofer v. Scroggins, 98 Ala. 342, 13 So. 115, 39 Am.St.Rep. 54; 1 Am.Jur. 651, § 52, note 13; Code 1940, Tit. 27, Chap. 1.
The question in this case is whether a petition for the adoption of a minor child by its maternal grandparents under the provisions of Title 27, Chapter 1, Code 1940, pending in the probate court, serves to prevent a court of equity in that county from hearing a petition by the father of the child to have its custody awarded to him under the general equity powers of such a court over the custody of a minor child, when the proceeding in equity was begun after the adoption petition was filed.
This Court has held that under section 5202, Code of 1907, the adoption of a minor child did not affect the power and jurisdiction of a court of equity to make provision for the custody of the child to be awarded to another than the adoptive parent. McClure v. Williams, 201 Ala. 499, 78 So. 853.
Since the present law went into effect, the same principle was sustained. Rhodes v. Lewis, 246 Ala. 231, 20 So.2d 206. The opinion in that case was rendered on the theory thought to be obvious, that the amended law does not change the theory of the earlier case. The amended law (section 5) is clear that the adoptive parent stands in the right of the natural parent (2 Corpus Juris Secundum, Adoption of Children, § 56, p. 447; Murphree v. Hanson, 197 Ala. 246, 72 So. 437), but only that, and it does not determine his right to custody against the claims of others and the interests of the child. The act of adoption merely carries the prima facie right to custody such as a natural parent has. Cofer v. Scroggins, 98 Ala. 342, 343, 13 So. 115, 39 Am.St.Rep. 54. Of course a court of equity has jurisdiction to withdraw custody from a natural parent, and a fortiori from an adoptive parent. Adoption proceedings cannot defeat that power, and do not judicially determine the right to custody as against the natural parent. See, Wright v. Price, 226 Ala. 468, 147 So. 675; Murphree v. Hanson, supra; Ex parte Fletcher, 225 Ala. 139, 142 So. 30.
We do not think that the amended statute serves to change the rule declared in the previous cases.
The decree dismissing the petition in equity by the father of the child for its custody does not conform to our interpretation of the statute, and it is reversed and the cause remanded.
Reversed and remanded.
GARDNER, C. J., and STAKELY and SIMPSON, JJ., concur.