Stills v. Johnson
| Decision Date | 10 July 2000 |
| Docket Number | No. S00A0118.,S00A0118. |
| Citation | 533 S.E.2d 695,272 Ga. 645 |
| Parties | STILLS et al. v. JOHNSON et al. |
| Court | Georgia Supreme Court |
OPINION TEXT STARTS HERE
Husser, Gammage & Frazier, Genevieve L. Frazier, Cedartown, for appellants.
Bernadette C. Crucilla, Macon, Robert E. Turner, Warner Robins, for appellees.
Kutner & Bloom, Jeanney M. Kutner, Atlanta, H. William Sams, Jr., Augusta, amici curiae. FLETCHER, Presiding Justice.
The issue presented by this petition for habeas corpus is the proper standard to be applied in a custody dispute between the paternal grandmother and the maternal uncle of the child, where neither relative is a parent as defined by Georgia law, and the child's parent has transferred "parental power" to the grandmother pursuant to OCGA § 19-7-1(b)(1).1 We hold that, in accordance with the development of the law in this state, where two parties seek custody of a child, and neither is a parent of the child, custody is to be governed by the standard of best interest of the child. Because the trial court applied the fitness standard in this case in awarding custody of the child to the paternal grandmother, we reverse and remand this case for application of the proper standard.
The child at the center of this custody dispute was born in February 1994 to Cassandra Stills and Steven Brian Trainer. Stills and Trainer did not marry. A year and a half after the child's birth, Trainer filed a petition to legitimate him which was unopposed by Cassandra, and the child's birth certificate was subsequently changed to name Trainer as his father. There are no disputes regarding paternity or legitimation.
Days before the child's birth Trainer was arrested in Georgia and charged with numerous felonies and misdemeanors. He was sentenced to two consecutive ten-year sentences and is currently incarcerated in Reidsville State Prison. Trainer has been incarcerated during the entire life of the child. For more than a year after the child's birth, Cassandra visited Trainer in prison, taking the child with her. These visits ceased at some point in 1996 when the relationship between Cassandra and Trainer became strained.
Trainer testified during the custody hearing in this case that he had not made any financial contributions to the support of the child during the child's lifetime and admitted that he had never telephoned or communicated with his son after Cassandra ceased bringing the child to the prison for visits. He conceded that he had not telephoned the child even after the court in this case granted him telephone visitation because he "didn't get a chance to call." Trainer additionally admitted that he had a lengthy criminal history, having been incarcerated in North Carolina for "a couple of weeks around 1983" and incarcerated in New Jersey following a burglary conviction in 1988.
Cassandra Stills died in August 1997, and the child went to live with Doris Stills, Cassandra's mother. When Doris Stills petitioned the Houston County probate court for temporary letters of guardianship of the child, Steven Trainer was served and objected. Trainer thereafter executed a document purporting to relinquish custody and his parental power over the child2 to his mother, appellee Gertrude Johnson, a New Jersey resident. His petition states that the transfer of custody and parental power is "temporary" until such time as he is released from prison. Trainer additionally filed a petition for change of physical custody against Doris Stills which the trial court construed as a petition for habeas corpus pursuant to OCGA §§ 9-14-1 and 9-14-2. Doris Stills died of cancer during the pendency of these proceedings, and appellant Terry Stills, Cassandra's brother, was substituted as the party defendant. Terry Stills is married and is a resident of Texas. At the time of the custody hearing the child was living with Terry and his family. Prior to his marriage, Terry shared an apartment with Cassandra in Atlanta for several years, including the time she was pregnant with the child at issue. Terry attended birthing classes with Cassandra and assisted in the labor room during the birth of the child. For approximately the first three years of the child's life Terry lived with him and was involved in caring for him. He paid the rent of the shared apartment during Cassandra's maternity leave, and sometimes paid for day care and necessities for the child. When the child was approximately three years old Cassandra moved from Atlanta to Columbus, Georgia to take another job. Thereafter Terry saw the child at least every other weekend, either in Columbus or at his mother's home in Warner Robbins.
Appellee Gertrude Johnson offered evidence that she intermittently spoke to Cassandra by telephone and occasionally sent presents to the child prior to this custody dispute. She admitted that she had not met the child prior to the institution of these custody proceedings although she had been in the Atlanta area a number of times during the child's lifetime to visit another relative.
The dispute over the custody of this six-year-old child has been contentious. The record shows that after his mother's death, Terry Stills took the child to Texas without permission of the court. It is not disputed that Gertrude Johnson, during court-permitted visitation, took the child to New Jersey in direct violation of a court order and was subsequently held in contempt for her actions.
The trial court concluded that upon the death of Cassandra Stills, the right to custody of the child vested in Steven Trainer pursuant to OCGA § 19-9-2. That code section provides "[u]pon the death of either parent, the survivor is entitled to custody of the child; provided, however, that the court, upon petition, may exercise discretion as to the custody of the child, looking solely to the child's best interest and welfare." (Emphasis supplied.)
The trial court further concluded that because Trainer had made a valid transfer of his parental power by voluntary contract to his mother pursuant to OCGA § 19-7-1(b)(1), Gertrude Johnson had acquired a superior legal right to custody of the child, and that the burden shifted to Terry Stills to show that she was not a fit or proper person to obtain custody of the child. The trial court rejected Terry Stills's argument that the proper standard to be applied was the "best interest" of the child. Examining the evidence the court found that both parties were fit to be custodians of the child and that Terry Stills had failed to demonstrate by clear and convincing evidence that Johnson was not a fit custodian. The court thereafter awarded custody of the child to Gertrude Johnson.
This Court granted Terry Stills's application to appeal the grant of the petition for habeas corpus.3
1. Terry Stills argues that this case is controlled by the best interest of the child standard contained in OCGA § 19-7-1(b.1). That code section provides:
Notwithstanding subsections (a) and (b) of this Code section or any other law to the contrary, in any action involving the custody of a child between the parents or either parent and a third party limited to 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.
It can readily be seen that the General Assembly intended for this code section to apply only to custody disputes between "the parents or either parent" of the child and a specified group of relatives. Resolution of such custody disputes is to be governed by the best interest of the child. Neither party in this case is a "parent" as defined by Georgia law.4 By its express terms OCGA § 19-7-1(b.1) does not apply in a custody dispute between a grandmother and an uncle, and therefore its provisions do not govern the outcome of this case. We therefore decline to address the parties' and the dissent's arguments regarding the constitutionality of OCGA § 19-7-1(b.1). The constitutionality of that code section was not raised by the parties below and is not present in this appeal. This opinion should not be read as intimating any direction with regard to that issue.
2. In reaching its decision the trial court relied on two cases, Shope v. Singleton5 and Durden v. Johnson.6
In Shope v. Singleton the child's father gave "custody and control" of the child to a grandmother. Thereafter the father died. With the grandmother's permission, the child went to live with neighbors. The grandmother subsequently filed a petition for habeas corpus against the neighbors, seeking return of the child. This Court concluded that the grandmother had a superior legal right to the child by virtue of the father's voluntary agreement, and absent a showing of the grandmother's unfitness, the grandmother was entitled to custody of the child. Shope is but one of many in a line of cases in which the courts applied a fitness standard to resolve a custody dispute between non-parents, one of whom had been given the child by a parent.
The issue before us is whether, under the rule set out in Shope, a biological parent's voluntary release of parental power to his mother gave her a "superior legal right" to custody which cannot be...
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