¶1dissenting. This case follows Foster v. Foster, 230 Ga. 658,in which I also dissented. I joined Mr. Justice Gunter in his dissent in Bennett v. Clemens, 230 Ga. 317, 319 (196 SE2d 842), and as I leave this court I should like to leave my reason. I am unalterably opposed to the use of "unbridled discretion.” In Foster v. Foster, the court specifically found that plaintiff and defendant were both physically, mentally and morally fit persons to have the custody of the minor children of the parties. This court, in too many cases, has held that a minor child, or children, under those circumstances cannot be given to a third party as a matter of law. Temporary orders of the court should be guided by these same rules of law. In the case, supra, this court has broadened the discretion of the trial judge, and, in doing so, has erred. This appellant mother had been awarded custody of the children and appellee had been given certain visitation rights. When appellee husband continued to violate his visitation privileges, as shown in the majority opinion, the mother brought a petition for contempt, the only vehicle provided by law, the sole purpose being to aid the judge in carrying out the previous temporary order signed by him. A rule nisi issued for appellee to show cause why he should not be held in contempt. The only issue before the court was one of contempt. The trial judge, from the evidence, admitted the appellee was in contempt, but instead of *784fining him or placing him in the common jail, proceeded to treat it as one of custody and awarded the children one week to the paternal grandparents and the next week to the maternal grandparents. Since both of these cases were certified to this court for review, and since this court limits its jurisdiction to errors of law, it was incumbent upon the court to find as a matter of law that the third party grandparents were not entitled to the children; secondly, when the only question before the court is one of contempt, it was error to treat it as one of custody. If a change of custody were necessary, it should have been done by a separate petition.
¶2Professor Stubbs, in Georgia Law of Children, says: "But there is no authority to determine any question relating to custody in a contempt proceeding, even though the citation stem from a failure to comply with a court order in a divorce or alimony case.” P. 226, n. 94. This statement is supported by the law of this State in Hunnicutt v. Sandison, 223 Ga. 301 (2b) (154 SE2d 587). This court said, "In a contempt proceeding the trial judge has no discretion to modify the terms of a decree for divorce and alimony.” To proceed in any manner other than to adjudicate the contempt proceeding is according to this law error. Discretion is a mystical word, each judge using his own discretion to determine what it means. In Miller v. Wallace, 76 Ga. 479, 484, Mr. Justice Hall, in discussing the section of the Code which allows the judge to exercise discretion as to whom the custody of such child shall be given and when it gave the right to give custody of a child to a third party, he said: "The discretion to be exercised in such case is not an arbitrary and unlimited discretion like that confided to the Roman praetors, but, as remarked by Lord Mansfield in R. v. Wilkes, 2 Burr., 25, 39, is such a 'discretion as, when applied to a court of justice, means sound discretion guided by law. It must be governed by rule, not by humor; it must not be arbitrary, vague and fanciful, but legal and regular.’... Dr. Broom *785in his Legal Maxims, 84 et seq., in treating of the kind of discretion entrusted to courts and judges, pointedly and aptly remarks, 'It is held the duty of the judge, in a land jealous of its liberties, to give effect to the expressed sense or words of the law, in the order in which they are found in the Act, and according to their fair and ordinary import and understanding; for it must be remembered that the judges are appointed to administer, not to make the law, and that the jurisdiction with which they are entrusted has been defined and marked out by the common law or acts of parliament.’ ” (Emphasis supplied.) See, also, page 486 where the court said: "Under the 'discretion’ vested in him, no judge has authority to disregard or even to impair any acknowledged or established right of a party by its exercise, and if he does so, it would seem to follow, as a necessary consequence, that he abuses that discretion.”
¶3In Lamar v. Harris, 117 Ga. 993, 997, Mr. Justice Candler said: "The law does not fly in the face of nature, but rather seeks to act in harmony with it, and to that end encourages formation and continuation of those ties which, by the inscrutable providence of God, binds a man to his own flesh.” This brings to me my barnyard philosophy, often referred to by other members of the court. I might be wrong, but I don’t think any of them question my sincerity. I believe that the Supreme Judge of the Universe had the first discretion, and it was he who ordained that the female of the species should replenish the earth, and built into her instincts and intuitions which aid a mother in protecting and raising her young. This love is not severed when the umbilical cord is cut. Yes, I believe the calf should follow the cow.
¶4I realize the hardest decision a judge has to make is where to place custody of children in certain situations. We are all human, and the purpose of the law is to give guidance.
¶5In Encyclopedic Law Dictionary, the first law book that *786I purchased 52 years ago, I find under "Discretion”: "The equitable decision of what is just and proper under the circumstances. The power of a judge, in certain matters, to decide in accordance with his own judgment of the equities of the cases, unhampered by inflexible rules of law. The latitude allowed to judges as to the action to be taken on certain facts.. . The discretion of a judge is said to be the law of tyrants. It is always unknown; it is different in different men; it is casual, and depends upon constitution, temper and passion. In the best, it is every vice, folly, and passion to which human nature is liable.”
¶6Latin is imbedded in our law, and many of our most profound truths are found there. To the Justice who requested another Latin maxim, I submit the following: "Optima est lex, quae minimum relinquit arbitrio judiéis (That is the best system of law which confides as little as possible to the discretion of the judge); Optimus judex, qui minimum sibi (He is the best Judge who relies as little as possible on his own discretion); and Optimam esse legem, quae minimum relinquit arbitrio judiéis; id quod certitudo ejus praestat (That law is the best which leaves the least discretion to the judge; and this is an advantage which results from its certainty).” Discretion does not encompass the infringement of a right otherwise held by other parties. The right of natural parents to the custody of a child cannot be divested without cause; something must work a forfeiture, and I would so hold.
¶7I respectfully dissent.