Jewell v. McGinnis, A17A0161

• Decision Date: 22 June 2017
• Docket Number: A17A0161
• Citation: 802 S.E.2d 306
• Parties: JEWELL v. MCGINNIS et al.
• Court: Georgia Court of Appeals

341 Ga.App. 896

802 S.E.2d 306

JEWELL

v.MCGINNIS et al.

A17A0161

Court of Appeals of Georgia.

June 22, 2017

Kenneth Gene Lawrence, for Appellant.

Bryan Herbert Frost, Covington, for Appellee.

Miller, Presiding Judge.

This is the second appearance of this grandparent custody case in this Court. In Jewell v. McGinnis , 333 Ga. App. 108, 775 S.E.2d 539 (2015) ("Jewell I"),¹ this Court vacated the superior court's order granting joint legal custody to the mother and the paternal grandparents, with primary physical custody to the grandparents. Further, in Jewell I , this Court remanded the case with direction for the superior court to make the statutorily required factual findings by clear and convincing evidence under OCGA § 19-7-1 (b.1). On remand, the superior court entered a new order (the "Revised Custody Order"), which contained factual findings and again granted joint legal custody to the mother and grandparents and primary physical custody to the grandparents.

1. The mother appeals from the superior court's Revised Custody Order, contending, inter alia, that OCGA § 19-9-6 does not authorize an award of joint legal custody to a parent and a third party. We agree, and therefore we reverse the award of joint legal custody in this case and remand for further proceedings consistent with this opinion.

The Supreme Court of Georgia and this Court have both held that a third party may have sole legal custody of a child when no parent is suitable for custody; however, Georgia statutory law only supports joint legal custody arrangements between parents. Stone v. Stone , 297 Ga. 451, 455, 774 S.E.2d 681 (2015) ; Sheffield v. Sheffield , 338 Ga. App. 667, 669, 791 S.E.2d 428 (2016) ; Marks v. Soles , 339 Ga. App. 380, 386 (2), 793 S.E.2d 587 (2016). See also OCGA § 19-9-6 (5) ("Joint legal custody means both parents have equal rights and responsibilities for major decisions concerning the child[.]") (punctuation omitted.); OCGA § 19-9-3 (a) (1) (setting out general custody guidelines and recognizing that joint custody considerations remain with the child's parents).

The superior court had no power to grant joint legal custody to the mother and the paternal grandparents. Consequently, we must reverse that award and remand this case for further proceedings. Stone , supra, 297 Ga. at 455, 774 S.E.2d 681.

2. In light of our holding in Division 1, we need not address the mother's remaining argument.

Judgment reversed and case remanded with direction.

Bethel, J., concurs. McFadden, P.J., concurs fully and specially. McFadden, Presiding Judge, concurring specially.

I agree that we must reverse and remand. I concur fully in Division 1: the trial court was not authorized to award joint legal custody to a parent and a third-party. But I disagree with Division 2. We must address—and reverse—the trial court's finding "that the child would suffer both physical and significant emotional harm if she were placed in the custody of [the mother]."

As the majority notes, this case is now before us for the second time. The first appeal was by the mother from an order "awarding joint legal custody of her daughter, C. M., to Jewell and to the child's paternal grandparents, Stephen and Diane McGinnis, with primary physical custody to the grandparents." Jewell v. McGinnis , 333 Ga. App. 108, 775 S.E.2d 539 (2015). "[W]e vacate[d] and remand[ed] the case for the trial court to make ... findings under the required standard." Id. at 111 (3), 775 S.E.2d 539. Those findings included whether "parental custody would harm the child physically or emotionally." Id. That finding is required by a gloss our Supreme Court put on the grandparent custody statute, OCGA § 19-7-1 (b.1), when the statute's constitutionality was challenged. Clark v. Wade , 273 Ga. 587, 544 S.E.2d 99 (2001).

On remand after Jewell I , the trial court found the requisite prospect of harm. The mother has enumerated that finding as error. And error it is. It is error that would surely drive the proceedings on remand and so generate a third appeal and a third remand.

Such delay is always a denial of justice. But delay is particularly harmful to children. This child was six years old when her grandparents first filed an emergency motion seeking custody of her. She is now almost ten. This litigation has already overshadowed too much of her childhood.

We have explained as follows the findings required under OCGA § 19-7-1 (b.1) for a transfer of custody from a parent to a third party:

OCGA § 19-7-1 (b.1), which governs custody disputes between a biological parent and a limited number of third parties who are related to the child, including grandparents. OCGA § 19-7-1 (b.1) establishes a rebuttable presumption that it is in the best interest of the child to award custody to the parent of the child. The following three presumptions are implicit in the statute: (1) the parent is a fit person entitled to custody, (2) a fit parent acts in the best interest of his or her child, and (3) the child's best interest is to be in the custody of a parent. The presumption can nonetheless be overcome by the third-party relative showing, by clear and

convincing evidence, that parental custody would harm the child. Harm in this context has been defined as either physical harm or significant, long-term emotional harm, not merely social or economic disadvantages. Once the presumption has been overcome, the third-party relative must prove that an award of custody to him or her will best promote the child's health, welfare, and happiness. Thus, in applying the legal standard set forth in OCGA § 19-7-1 (b.1), the trial court need not determine that the parent seeking custody is unfit, only that the third-party relative has established by clear and convincing evidence that awarding custody to the parent would cause either physical harm or significant, long-term emotional harm to the child . If the third-party relative meets this burden, then the relative must show that an award of custody to him or her would best promote the child's health, welfare, and happiness.

Trotter v. Ayres , 315 Ga. App. 7, 8-9 (2), 726 S.E.2d 424 (2012) (citations and punctuation omitted; emphasis supplied).

Here, the trial court found that awarding custody to the mother would cause both physical harm and significant, long-term emotional harm to the child. But the evidence cannot sustain that finding.

The court cited testimony of a counselor that the child had a strong bond with the grandparents, that the child showed anxiety when asked about the mother, that the counselor could not continue counseling the child if she moved to the mother's home, that changing schools would not be good for the child, and that the child was uncomfortable with the schedule of spending alternating weeks with the mother and grandparents. "[T]he type of harm noted by the trial court falls within that level of stress and discomfort that is an acceptable price for reuniting a child with a parent, and is insufficient to infringe the fiercely guarded right of a parent to have legal and physical custody of his or her child." Bell v. Taylor , 334 Ga. App. 267, 269, 779 S.E.2d 42 (2015) (citations omitted).

The trial court also pointed to evidence that the mother had allowed sexually provocative photographs of herself (in which she is fully clothed) to be used as advertising for her husband's business and to an allegation that the mother had posted a "boastfully promiscuous" comment on Facebook. In the first place there is no evidence to support the finding about a Facebook comment. Regardless, those findings cannot sustain the trial court's conclusion. The trial court speculated that the child might someday be teased about the photographs or the alleged Facebook comment. But such speculation, particularly in the absence of any showing that these matters have actually caused any harm to the child, does not support an award of custody to the grandparents. See Bowman v. Bowman , 234 Ga. 348, 350, 216 S.E.2d 103 (1975) (findings that father was too young to care for children and was delinquent in work habits were insufficient to support award of custody to a third party); In re M....