Carvalho v. Lewis
| Decision Date | 10 February 1981 |
| Docket Number | No. 36590,36590 |
| Citation | 274 S.E.2d 471,247 Ga. 94 |
| Parties | CARVALHO v. LEWIS et al. |
| Court | Georgia Supreme Court |
Marian Burge and Steven Gottlieb, Atlanta, for Geraldine carvalho.
J. Douglas Sexton, Norcross, Joseph E. Cheeley, Buford, for Betty K. Lewis et al.
We granted certiorari to review the decision of The Court of Appeals in Lewis v. Lewis, 154 Ga.App. 853, 269 S.E.2d 919 (1980). The question on certiorari is whether the Court of Appeals' opinion, although correctly citing Mathis v. Nicholson, 244 Ga. 106, 259 S.E.2d 55 (1979), for the proper standard to be used in a custody contest between a parent and a third party, defines parental "unfitness" so as to make it indistinguishable from the much more discretionary determination of the "best interest of the child" a standard to be used in a contest between two parents.
This case involves a custody dispute over two minor children initiated by the father against the paternal aunt, the temporary custodian, and the mother, the legal custodian. The trial court granted custody of the children to the aunt on the basis that the older child, fourteen years old at the time of the trial court's order, preferred to remain with her aunt. Because the grant of custody of the fourteen-year-old to the aunt represented such a material change of circumstances so as to authorize a change of custody, permanent custody of the ten-year-old was also granted to the aunt.
The Court of Appeals vacated this judgment holding that in a custody dispute between a parent and a third party, the trial court must first make a determination as to whether the parent has lost his or her right pursuant to Code Ann. § 74-108 or that the parent is unfit pursuant to case law established by this court. See, e. g., Perkins v. Courson, 219 Ga. 611 135 S.E.2d 388 (1964).
We agree with the Court of Appeals' conclusion that the case must be remanded for the prescribed determination. However, we disagree with the Court of Appeals to the extent that it has implied that a trial judge in the exercise of his legal discretion may compare the relative merits of a parent to those of a third party.
A finding of unfitness must center on the parent alone, that is, can the parent provide for the child sufficiently so that the government is not forced to step in and separate the child from the parent. A court is not allowed to terminate a parent's natural right because it has determined that the child might have better financial, educational, or even moral advantages...
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In re E. G. L. B.
...640 (1981) (Blackmun, J., dissenting).14 In the Interest of D. M., 339 Ga. App. at 51–52, 793 S.E.2d 422 ; accord Carvalho v. Lewis, 247 Ga. 94, 94, 274 S.E.2d 471 (1981) ; In the Interest of S. O. C., 332 Ga. App. at 743, 774 S.E.2d 785.15 In the Interest of D. M., 339 Ga. App. at 52, 793 ......
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McDermott v. Dougherty
...can be rebutted only if `detrimental to the welfare of the child' based on an exceptional circumstances test); Carvalho v. Lewis, 247 Ga. 94, 274 S.E.2d 471, 472 (1981) (applying unfitness or `compelling circumstances' test and noting `[a] court is not allowed to terminate a parent's natura......
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Burak v. Burak
...been granted temporary custody and the children's biological mother who was the legal custodian of the children. Carvalho v. Lewis , 247 Ga. 94, 274 S.E.2d 471, 472 (1981). In vacating the lower court's grant of custody to the paternal aunt, the Carvalho Court first acknowledged that in cus......
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Clark v. Wade
...1045 (1996). 2. 265 Ga. 189, 454 S.E.2d 769 (1995). 3. OCGA § 19-7-1(b.1) (1999). 4. See OCGA § 19-9-3(a)(2) (1999); Carvalho v. Lewis, 247 Ga. 94, 95, 274 S.E.2d 471 (1981); Gazaway v. Brackett, 241 Ga. 127, 128, 244 S.E.2d 238 (1978); see also Ivey v. Ivey, 264 Ga. 435, 437, 445 S.E.2d 25......
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Domestic Relations - Barry B. Mcgough and Gregory R. Miller
...100. Id. at 763, 514 S.E.2d at 48. 101. Id. (citing In re R.L.L. & J.M.L., 258 Ga. 628, 628, 373 S.E.2d 363, 364 (1998); Carvalho v. Lewis, 247 Ga. 94, 94, 274 S.E.2d 471, 472 (1981); In re J.C.P., 167 Ga. App. 572, 573, 307 S.E.2d 1, 2 (1983)). 102. Id. 103. 233 Ga. App. 690, 505 S.E.2d 70......