This is a custody dispute involving A. M. G., born July 30, 1998. In early 2002, the mother of the child, Beverly Ann Moore Gordon, began serving a sentence for felony credit card fraud at the Davisboro Washington State Prison for Women in Washington County, Georgia. On July 8, 2002, the mother assigned temporary guardianship of the child to her mother the child’s grandmother, appellant Betty H. Gordon, so the child could be cared for during her incarceration. However, the mother revoked the temporary guardianship on June 17, 2003. About that same time, the mother executed a “Limited Power of Attorney for Child Care” to her boyfriend, William Gerlach. The mother specifically provided that the limited power of attorney “shall terminate upon a subsequent revocation on 12/03. . . .” Gerlach was also appointed temporary guardian of the child by the Gwinnett County Probate Court. On July 7, 2003, the grandmother filed a petition for child custody in the Washington County Superior Court, the county in which the mother is incarcerated. The mother filed an answer to the petition, in which she admitted being a current resident of Washington County. A hearing was held on the petition on August 23, 2003. Following the hearing, the trial court entered an order finding that the petition should have been filed in the county of the guardian’s, and not the mother’s, residence because “suits in the nature of habeas corpus seeking a change in custody must be brought in the jurisdiction where the party who has possession of the child is located.” We granted the grandmother’s application for discretionary review to determine whether the trial court erred in dismissing her complaint on this basis.
1. We first address our jurisdiction to entertain this appeal. In dismissing the grandmother’s petition, the court characterized the petition as an action for habeas corpus. If this were indeed a habeas corpus action, then the Supreme Court and not this Court would have jurisdiction over this appeal. Johnson v. Smith , 251 Ga. 1, 2 1 302 SE2d 542 1983. But “habeas corpus is not an available remedy to inquire into the legality of the custody of a child in a case where the alleged detention is not against the right of the applicant seeking custody.” Citations and punctuation omitted. In the Interest of B. A. S. , 254 Ga. App. 430, 441 8 563 SE2d 141 2002. The grandmother in this case is not seeking custody under some claim of legal right. Instead the grandmother claims that she should have custody because it is in the child’s best interest. Under these circumstances, this Court has jurisdiction over the appeal.
