Larson v. Gambrell

• Decision Date: 21 January 1981
• Docket Number: No. 60794,60794
• Citation: 276 S.E.2d 686,157 Ga.App. 193
• Parties: LARSON v. GAMBRELL.
• Court: Georgia Court of Appeals

Page 686

276 S.E.2d 686

157 Ga.App. 193

LARSON v. GAMBRELL.

No. 60794.

Court of Appeals of Georgia.

Jan. 21, 1981.

J. H. Gnann, Jr., Savannah, for appellant.

Vicki L. Gambrell, pro se.

CARLEY, Judge.

Appellant-father and appellee-mother were divorced in 1973. Under the terms of the divorce decree appellee was awarded custody of their child. Appellant filed a petition for modification of the decree, seeking custody of his child, alleging that "(s)ince the date of said divorce (appellee) has placed said child in the custody of (appellee's) mother ..." A hearing on the petition was held and the trial judge found that "(t)he child has now been living with his maternal grandparents, ..., for about one year with permission of (appellee). She felt that the grandparents were better able to meet (the child's) needs at the present, particularly with respect to adequate living space and health care ... The present living conditions are much better than he would experience at (appellee's) home which is cramped for space and has an unsafe traffic condition nearby." The trial judge then found that the evidence, though conflicting, authorized a finding of "change of condition" substantially affecting the welfare of the child and a change of custody.

The trial judge, citing Bond v. Norwood, 195 Ga. 383, 387, 24 S.E.2d 289 (1943), then held that while "(u)nder ordinary circumstances a father has a right to custody of his minor child as against a third person unless he forfeits or surrenders his right of custody... '(a) different rule of law is applicable when the contest for custody of a minor is between parents of that minor. In such cases the father has no prima facie right to its custody, and the law directs that the welfare and best interest of the child control the Court in awarding custody.' " Specifically finding neither appellant nor appellee "to be unfit," the trial judge determined that the child's welfare and best interest would be served by the child being placed in the custody of the maternal grandparents "who have the desire and adequate financial means to care for the child properly." The divorce decree was therefore modified so as to remove the child from the custody of appellee and place him into the custody of the grandparents.

Pursuant to Code Ann. § 6-701.1, appellant petitioned this court for a discretionary appeal from the change of custody decree. The petition was granted in order that we might review the propriety of the award of custody of appellant's child to the maternal grandparents.

1. It is clear that the evidence that appellee relinquished physical custody of the child to the grandparents authorized the court to modify the divorce decree with reference to the question of legal custody. Wilt v. Wilt, 229 Ga. 658, 193 S.E.2d 833 (1972). The only issue is whether the trial judge was authorized under the evidence to modify the decree so as to give that legal custody to the grandparents. We find that the evidence did not authorize an award of custody to the grandparents and the trial court erred in so ordering. " 'In a divorce action in which child custody is an issue, the test for use by the trial court in determining which parent shall have child custody is "the best interests of the child. " (Cits.) ... However, where a third party (e. g., a grandparent) is being awarded custody of a child as part of a divorce case, or where such a third party sues to obtain child custody from a parent, the test is not simply the "best interests" or "welfare" of the child because the parents are being deprived of custody of their child. In such cases, a parent is entitled to be awarded custody by the trial court unless it is shown by clear and convincing evidence that such parent is unfit or otherwise not entitled to custody under the laws. (Cits.)' (Cit.)" (Emphasis supplied in part.) Higbee v. Tuck, 242 Ga. 376, 376-377, 249 S.E.2d 62 (1978). As between parents with equal rights to custody the child's "best interest" is the only determinative factor since the law presumes that "the welfare and best interest of a child will best be served, except in extraordinary cases, by his being in the custody of his own parent," Boge v. McCollum, 212 Ga. 741, 745, 95 S.E.2d 665 (1956). However, an award of child custody to a third party must be based upon more than the "best interests" of the child because such an award is in derogation of the right to custody of the parent, in whose custody the law presumes the child's best interest will be served. Thus, it is only when the present unfitness of the parent is established by clear and convincing evidence that the trial judge is authorized to...