Mathis v. Nicholson
| Decision Date | 05 September 1979 |
| Docket Number | No. 34987,34987 |
| Citation | 244 Ga. 106,259 S.E.2d 55 |
| Parties | MATHIS v. NICHOLSON. |
| Court | Georgia Supreme Court |
F. Gregory Melton, Dalton, for appellant.
McCamy, Minor, Phillips & Tuggle, Joseph T. Tuggle, Jr., Dalton, for appellee.
This is an appeal by the mother of two minor children from an order of the trial court denying her petition for habeas corpus and changing legal custody from her to the appellee paternal grandmother.
The trial court found "that the best interest and welfare of the minor children will be served by denying the writ of habeas corpus." This is not the proper standard to be used in a contest between a parent and a third party over the custody of a child. Higbee v. Tuck, 242 Ga. 376, 249 S.E.2d 62 (1978). White v. Bryan, 236 Ga. 349, 223 S.E.2d 710 (1976). A finding of unfitness must be supported by clear and convincing evidence. Heath v. Martin, 225 Ga. 181(2), 167 S.E.2d 153 (1969); Gazaway v. Brackett, 241 Ga. 127, 129, 244 S.E.2d 238 (1978).
The trial court in this case did not make a finding of unfitness of the appellant mother or that she had otherwise lost her parental rights under the above stated Code sections. Since the correct standard was not used, the judgment of the trial court will be vacated with direction that a new hearing be conducted on the permanent custody of the minor children. See Childs v. Childs, 237 Ga. 177, 227 S.E.2d 49 (1976).
Judgment vacated and remanded with direction.
All the Justices concur.
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M.M.A., In re
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...specified in Code Ann. §§ 74-108, 74-109, or 74-110 is found to exist, or if the parent is found to be unfit. Mathis v. Nicholson, 244 Ga. 106, 259 S.E.2d 55 (1979). If and only if the habeas court determines from the evidence that the surviving parent has lost his right to custody on one o......
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...Code §§ 74-108, 74-109, and 74-110 is found to exist, or, in exceptional cases, if the parent is found to be unfit." Mathis v. Nicholson, 244 Ga. 106, 259 S.E.2d 55 (1979). While the wishes of a minor over the age of 14 may be considered, this, without a finding of unfitness as here defined......
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