
    27658.
    ULM v. WESTBROOK et al.
    Submitted January 8, 1973
    Decided February 8, 1973.
   Nichols, Justice.

This appeal arises from a judgment of the Tift Superior Court awarding custody of a six-year-old little girl to her maternal grandparents in a habeas corpus proceeding brought by her father after a divorce decree granted the father her custody. The divorce action was brought in Baldwin County and the decree based upon an agreement gave custody of the child to the father. This decree was dated three months prior to the institution of the present action.

There was evidence that the father was an habitual drunkard, as well as evidence that his present wife was under psychiatric care and was not presently emotionally suited to care for a six-year-old child. Held:

1. The child’s mother not being a party to this action, no question is presented as to the right of custody as between parents.

2. The sole question for decision is whether the trial court erred in refusing to award custody of the child to her father.

3. Whether the father be deemed unfit (see Perkins v. Courson, 219 Ga. 611 (135 SE2d 388)) or whether it be deemed cruel treatment to have had the child in a household where her well-being would be endangered (Code § 74-108 (6)), the judgment of the trial court refusing to give the plaintiff father custody of his daughter and leaving her in the custody of her maternal grandparents shows no reversible error.

Judgment affirmed.

All the Justices concur, except Hawes and Gunter, JJ, who dissent.

James E. Peugh, for appellant.

Bob Reinhardt, for appellees.  