B.D.C., In re
| Decision Date | 02 December 1986 |
| Docket Number | No. 43842,43842 |
| Citation | 256 Ga. 511,350 S.E.2d 444 |
| Parties | In re B.D.C. |
| Court | Georgia Supreme Court |
Bryant Huff, Johnny R. Moore, Huff & Moore, Lawrenceville, for B.D.C.
Donn M. Peavy, Lawrenceville, for the father.
The grandparents of B.D.C. brought a petition for temporary custody of their grandchild. The petition was granted. Upon appeal from the father, the Court of Appeals reversed. 180 Ga.App. 87, 348 S.E.2d 548. We find the Court of Appeals failed to apply the proper standard of appellate review and reverse.
B.D.C. was born in 1980 while his parents were separated. In a subsequent divorce, the mother was awarded custody and the father was ordered to pay $200 monthly child support. In 1985, garnishment proceedings were instituted against the father for nonpayment. The garnishment issue was settled on July 10, 1985 by a written agreement, under which the father paid $4,000 to cover a portion of the arrearages with the remainder to be paid in monthly installments beginning in 1985.
On August 3, 1985, the mother died. On August 14, 1985, the grandparents of B.D.C. filed a petition for temporary custody. At a hearing on August 21, 1985, evidence showed the child had since birth lived with the grandparents, who provided for his clothing, food, shelter and health needs. Despite an annual income of approximately $40,000, the father made no support payments in 1982, 1983 or 1984. The only payment in 1985 was the $4,000 lump sum resulting from the garnishment action. Witnesses for the grandparents testified the father had almost no contact with the child. He had not visited the child or mother at the hospital at the child's birth, and never sent cards or gifts to the child. The father admitted he did not know the child's birthday. He usually referred to the child as "that boy" and on occasion denied paternity. The grandmother testified the father had in the past few years made no inquiries concerning, and shown no interest in, the child's growth and development.
The father testified his lack of contact and communication with the child resulted from disputes with the grandparents. He claimed the grandparents and mother blocked the exercise of his visitation rights, but that he could not afford legal action to enforce them because he was supporting a second family. The father said he left messages with the grandparents' telephone answering device concerning the child, but that his calls were never returned. He testified that he would give his wife money out of his pocket for support on occasions when he saw her. Held:
While a surviving parent is prima facie entitled to custody of his or her child, parental right to custody may be lost if one of the conditions specified in OCGA §§ 19-7-1 or 19-7-4 is found to exist, or if the parent is found to be unfit. Miele v. Gregory, 248 Ga. 93(2), 281 S.E.2d 565 (1981). OCGA § 19-7-1(b)(3) provides parental power may be lost by failure to provide necessaries for the child or abandonment of the child. But for a third party to prevail in obtaining custody in a contest with the surviving parent, clear and convincing evidence that the parent has lost the right to parental custody and control by abandonment or some other legal ground must be presented. Miele v. Gregory, supra at 95, 281 S.E.2d 565. See also Blackburn v....
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