Durden v. Barron
| Decision Date | 04 May 1982 |
| Docket Number | No. 38148,38148 |
| Citation | 249 Ga. 686,290 S.E.2d 923 |
| Parties | DURDEN v. BARRON. |
| Court | Georgia Supreme Court |
Denmark Groover, Jr., Frank H. Childs, Jr., Groover & Childs, Macon, for Kathy Elaine Durden.
J. Alton Gladin, Lawton Miller, Jr., Macon, for Bobby H. Barron, Sr., et al.
The Court of Appeals has certified the following questions to this court:
1. It is now settled that, in a custody contest between a parent and third party, the parental right to custody may be lost only if by clear and convincing evidence one of the conditions specified in Code Ann. §§ 74-108, 74-109, or 74-110 or parental unfitness is shown to exist Miele v. Gregory, 248 Ga. 93, 281 S.E.2d 565 (1981); Gazaway v. Brackett, supra, 241 Ga. at 129, 244 S.E.2d 238. This rule presupposes an existing parental right to custody vis a vis the third party. It is thus inapplicable to a parent who has lost the parental right to custody.
Where a parent was a party to a proceeding in which his or her right to custody was lost and custody was permanently awarded to a third party, the parent does not have a prime facie right to custody. Accordingly, the first certified question is answered in the negative.
2. Once a third party has been awarded permanent custody of a child in a court proceeding to which a parent was a party, the roles of the parent and the third party reverse; that is, the third party now has the prima facie right to custody as against the parent who has lost the right to custody. The parent can regain custody upon showing by clear and convincing evidence his or her present fitness as a parent and that it is in the best...
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