Clark v. Wade
| Decision Date | 16 February 2001 |
| Docket Number | No. S00A1610, No. S00A2014. |
| Citation | 273 Ga. 587,544 S.E.2d 99 |
| Parties | CLARK et al. v. WADE et al. Driver et al. v. Raines. |
| Court | Georgia Supreme Court |
OPINION TEXT STARTS HERE
English, Tunkle & Smith, Richard Tunkle, Clayton, for appellants (case no. S00A1610).
Campbell & Campbell, Susan C. Campbell, McDonald & Cody, Phillip G. Cody, Jr., Cornelia, for appellee (case no. S00A1610).
Vicky O. Kimbrell, Hannibal F. Heredia, Vicky L. Gribble, Lisa J. Krisher, Phyllis J. Holmen, Atlanta, Todd C. Hughes, Augusta, Stephen R. Scarborough, Atlanta, amici curiae (case no. S00A1610).
Lambda Legal Def/Educ Fund, Inc., Stephen Randall Scarborough, Atlanta, for amicus appellee.
Kutner & Bloom, Jean M. Kutner, David A. Webster, Atlanta, for appellants (case no. S00A2014).
Moulton & Massey, John W. Moulton, Kristine M. Tarrer, Conyers, for appellee (case no. S00A2014).
In these two child custody disputes, the maternal grandparents challenge the trial court's award of custody to the noncustodial father. The trial courts found in both cases that it would be in the best interest of each child to remain with his grandparents, but struck down the "best-interest-of-the-child" standard in OCGA § 19-7-1(b.1) as unconstitutional. We granted the grandparents' discretionary applications to determine whether the best-interest-of-the-child standard is constitutional in custody disputes between a parent and a third party. Considering the fundamental rights of parents, we construe the custody statute as requiring the third party to show by clear and convincing evidence that parental custody would harm the child in order to rebut the statutory presumption in favor of the parent. With that narrowing construction, we uphold as constitutional the best interest standard when applied to custody disputes between a biological parent and custodial third party under OCGA § 19-7-1(b.1). Therefore, we reverse and remand.
Both of these appeals concern a custody dispute between a single, noncustodial parent and relatives who have physical custody of the child. Thus, these cases do not involve the removal of a child from the parent's home, but rather the possible reunification of parent and child.1
S00A1610. Clark v. Wade.
Warren Wade was born in 1994 to Melissa Wright and Douglas Wade and has lived with his maternal grandparents, Margie and James Clark, since 1995. When Warren's parents divorced in 1996, his mother was awarded custody. She left him to be raised by his grandparents, who were already raising his older brother, and Warren's father exercised regular visitation rights. In 1999, Melissa Wright was arrested for a drug violation, and Douglas Wade sought custody of their five-year-old child. The trial court awarded him temporary custody, and the grandparents moved to intervene in the custody proceeding. The trial court found that it would be in the best interest of the child to remain in the custody of the grandparents, but struck down the best interest standard in OCGA § 19-7-1(b.1) as "constitutionally insufficient" and awarded custody to the father. This Court granted the grandparents' application to appeal to consider whether the statute was unconstitutional under our ruling in Brooks v. Parkerson.2
S00A2014. Driver v. Raines.
Justin Casey Veal was born in 1992 and is the child of Dawn Driver and John Raines, who never married. The child has lived with his mother and maternal grandparents most of his life. The state sought child support from the father in 1995; the father filed a petition for legitimation in 1996; and Justin lived with his father from June 1996 to January 1997. When Justin returned home to his mother and grandparents, he complained about his arm and doctors determined that it had been broken for a week. The father filed a petition for custody, and the maternal grandparents intervened. In response to the father's constitutional challenge, the trial court ruled that § 19-7-1(b.1) failed to articulate any standard and allowed the fact-finder to substitute its subjective judgment about the child's best interest for the parent's decision, thus depriving parents of their liberty and privacy interests in the care, custody, and management of their children. Accordingly, the trial court held that the statute was unconstitutional and awarded custody to the father. This Court granted the grandparents' application and consolidated their appeal with Clark v. Wade.
OCGA § 19-7-1(b.1) governs custody disputes between a biological parent and a limited number of third parties who are related to the child. They include a grandparent, aunt or uncle, great aunt or uncle, sibling, or adoptive parent. The statute provides that a parent may lose custody if a trial court determines that the best interest of the child supports an award of custody to the third party. There is a presumption that it is in the child's best interest to remain in the custody of the parent, but the third party may rebut that presumption. The statute provides:
[I]n any action involving the custody of a child between the parents or either parent and a third party limited to grandparent, great-grandparent, aunt, uncle, great aunt, great uncle, sibling, or adoptive parent, parental power may be lost by the parent, parents, or any other person if the court hearing the issue of custody, in the exercise of its sound discretion and taking into consideration all the circumstances of the case, determines that an award of custody to such third party is for the best interest of the child or children and will best promote their welfare and happiness. There shall be a rebuttable presumption that it is in the best interest of the child or children for custody to be awarded to the parent or parents of such child or children, but this presumption may be overcome by a showing that an award of custody to such third party is in the best interest of the child or children. The sole issue for determination in any such case shall be what is in the best interest of the child or children. 3
Enacted in 1996, this statute adopts the same standard—best interest of the child— for custody disputes between a parent and third party as applies in custody disputes between two parents4 or third parties.5 The primary difference is that OCGA § 19-7-1(b.1) establishes a rebuttable presumption that parental custody is always in the child's best interest, thus favoring the biological parent over the third party.
In construing statutes, we must consider the legislative intent, keeping in mind "the old law, the evil, and the remedy."6 Under prior case law, the biological parent had a prima facie right to custody in an initial contest with any third party, including grandparents,7 stepparents,8 and adopting parents.9 A third party who sought custody had to show that (1) the parent had lost his or her parental power or (2) the parent was unfit.10
Under the parental rights standard, a third party could gain custody in a dispute with a parent only by proving by clear and convincing evidence that the parent had lost his or her parental power.11 A parent could lose parental power in one of these ways: voluntary contract, consent to adoption, failure to provide necessaries or abandonment, consent to the child's receiving the proceeds of his labor, consent to the child's marriage, cruel treatment, or rearing the child under immoral influences.12
Strict adherence to the parental rights standard sometimes resulted in unjust decisions that ignored the health and welfare of the child. For example, this Court reversed an award of custody to a stepfather with whom the child had lived and ruled instead that the biological father was entitled to custody after the mother's death, despite his having provided no financial support or sought any visitation with his daughter in the seven years since his divorce from the mother.13 Our decision was based in part on the well-settled legal principle that a parent's failure to support a minor child was not "a failure to provide necessaries or such abandonment as will amount to a relinquishment of the right of the parent to parental custody and control" when the mother never sought support.14 As one commentator concluded after reviewing the cases on relinquishment of a child by voluntary contract, "[A]dherence to the parental rights doctrine has led child custody cases into the thickets of the technicalities of contract law and away from the more relevant question of what is best for the child."15
Because of the harshness of the parental rights standard, this Court adopted a second standard by which a parent could lose custody in exceptional circumstances.16 Under the fitness standard, the third party had to prove by clear and convincing evidence that the biological parent was unfit. In deciding parental unfitness, the trial court had to restrict its inquiry to the parent's present fitness; it could not rely on evidence of the parent's past unfitness17 or compare the parent's ability to raise the child with the superior fitness of a third person.18
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 elsewhere. Only under compelling circumstances found to exist by clear and convincing proof may a court sever the parent-child custodial relationship. 19
Although this standard appears fair on its face, its application has caused unfair results because of its reliance on biological connections to the exclusion of other important considerations.20 The fitness standard does not consider the absence...
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