¶1concurring specially.
¶2I concur in the reversal because the issue of custody was not properly before the court.
¶3By amendment effective July 1, 1997, the statute expressly stated that “[i]ssues of name change, visitation, and custody shall not be determined by the court until such time as a separate petition is filed by one of the parents or by the legal guardian of the child. Custody of the child shall remain in the mother until a court order is entered addressing the issue of custody.” Ga. L. 1997, pp. 1613, 1628-1629, § 14 (OCGA § 19-7-22 (g)). Because this prohibition was part of a whole new subsection which addressed petitions brought by the Department of Human Resources, it is reasonable to construe the statute so as to limit the prohibition to DHR-instituted instances, which Cantrell’s petition is not.
¶4But even if the exclusion of jurisdiction of the issue of custody was meant to apply to all legitimation actions presented in accordance with OCGA § 19-7-22, and thus include father Cantrell’s, it appears that there would be no prohibition. The reason is that what is now designated in the Code as subsection (g) of OCGA § 19-7-22 was dropped when the statute was amended for the second time in 1997, also effective July 1.
¶5The second amendment redesignated the first four sentences of subsection (a) as subsections (a) through (c), deleted the last sentence of subsection (a), and added new subsections (d) through (f). Ga. L. 1997, pp. 1681, 1685, § 5. This second amendment did not retain the subsection which had been added as (b) in the previous act. Instead, the Code Commission added it as subsection (g), and that is why it appears in the Code. But OCGA § 28-9-5 does not authorize the Commission to add back to the law sections which the General Assembly has deleted. The return of this substantive provision is not a grammatical or editorial change of the type listed in that statute, which defines and limits the Code Commission’s powers.
¶6Thus, whether or not what is shown as subsection (g) of OCGA § 19-7-22 is the current law of Georgia and was the law when the trial court acted, the practice of adjudicating custody in legitimation proceedings with the mother’s consent is still permitted.