Cothran v. Cothran

237 Ga. 487 (1976)

228 S.E.2d 872

COTHRAN v. COTHRAN.

31239.

Supreme Court of Georgia.

Argued June 15, 1976.

Decided September 8, 1976.

Gordon & Newman, Joseph D. Newman, for appellant.

HILL, Justice.

Teresa Hogan Cothran, appellant, filed suit for divorce and custody of the daughter of the parties. The husband counterclaimed for divorce and child custody. Hearing was held before the trial judge without a jury and judgment was entered granting the divorce. The trial judge found that both parents were unfit and improper people to have custody of the child, terminated all parental rights and awarded permanent custody of the child to the Department of Family & Children Services.

The wife appeals from the portion of the order pertaining to the custody of her child and the termination of her parental rights. She contends that the trial court did not have jurisdiction to terminate parental rights, that she was denied due process of law by the proceedings, and that termination of parental rights was not supported by "clear and convincing" evidence. Because of our determination that we must reverse for lack of jurisdiction, we will not reach the other contentions.

Georgia Laws 1971, at page 709, created a new Code Title 24A, which contains the Juvenile Court Code of Georgia. Code § 24A-301 states that the juvenile courts "shall have exclusive original jurisdiction over juvenile matters and shall be the sole court for initiating action ... involving any proceedings ... for the termination of the legal parent-child relationship." Code Ann. § 24A-301 (a) (2) (C). (Emphasis supplied.) Nothing in Code Ann. § 2-3901 provides to the contrary.

Code Ann. Ch. 24A-32 sets forth the required grounds and procedure for the termination of parental rights. A superior court judge, upon hearing a divorce and child custody case, does not have jurisdiction to terminate parental rights, although he can exercise his discretion as to the best interests of the child to award custody to a party other than the parents. Code § 30-127; Code § 74-107; Triplett v. Elder, 234 Ga. 243 (1) (215 SE2d 247) (1975); *488 Williams v. Ferrell, 231 Ga. 470 (202 SE2d 427) (1973); Perkins v. Courson, 219 Ga. 611, 615 (135 SE2d 388) (1964).

The superior court lacked jurisdiction to terminate parental rights in a divorce and child custody case.

Judgment reversed. All the Justices concur.