Wade v. Wade, S00A0489.

• Decision Date: 30 May 2000
• Docket Number: No. S00A0489.,S00A0489.
• Citation: 531 S.E.2d 103,272 Ga. 526
• Parties: WADE v. WADE.
• Court: Georgia Supreme Court

531 S.E.2d 103

272 Ga. 526

WADE v. WADE.

No. S00A0489.

Supreme Court of Georgia.

May 30, 2000.

Reconsideration Denied June 30, 2000.

Walters, Davis & Pujadas, J. Harvey Davis, Ocilla, Davis, Matthews & Quigley, Richard W. Schiffman, Jr., Atlanta, for appellant.

Roberts, Roberts & Ingram, Guy V. Roberts, Jr., Cordele, for appellee.

HUNSTEIN, Justice.

Appellant Jessica Wade and appellee Zackary Wade were married in 1996. Their son was born later that same year. In 1998, appellant filed an action for divorce and was granted temporary custody of the child, although the parties shared physical custody during the pendency of the divorce. At trial, both parties sought primary physical custody of their son but neither argued that the other was unfit. In support of their claims for custody, appellee alleged that appellant was involved in a relationship with another man, while appellant presented evidence that appellee was an excessive drinker and such drinking had endangered the child in the past. During trial, in response to appellant's objection, the court limited the cross-examination of the maternal grandfather and stated:

I am not going to expand the custody consideration to grandparents. You may cross-examine him on any area of the parents' ability to provide for this child, but he won't be custodian under any circumstances and neither will [appellee's] parents, so I'm not going to allow that.

However, in its final judgment and decree of divorce the trial court found both appellant and appellee to be unfit and awarded custody of the child to the paternal grandparents. Appellant filed an application for appeal in this Court which we granted to consider whether the trial court erred in awarding custody of the parties' minor child to a third party based upon the trial court's findings that both parents are unfit. Because the record does not support the trial court's finding that appellant is unfit, we reverse.¹

1. In considering the question asked by this Court in granting the application, we must necessarily first determine whether the trial court erred in its finding that appellant, the natural mother, was unfit to receive custody of her child. See Carvalho v. Lewis, 247 Ga. 94, 274 S.E.2d 471 (1981). A parent is entitled to the custody of her child in preference to a third party unless it is shown by clear and convincing evidence that the parent is unfit. Blackburn v. Blackburn, 249 Ga. 689, 692(2), 292 S.E.2d 821 (1982). Similarly, the appropriate standard of appellate review in a case such as this where a parent has been determined to be unfit is whether there was clear and convincing evidence of the parent's unfitness. Id. at 694(2), 292 S.E.2d 821. This standard of review "safeguards the high value society places on the integrity of the family unit and helps eliminate the risk that a factfinder might base [its] determination `on a few isolated instances of unusual conduct (or) ... idiosyncratic behavior.' [Cit]." Id.

Reviewing the record evidence and applying the appropriate standard of review, we do not find clear and convincing evidence sufficient to enable a rational trier of fact to conclude that appellant is unfit. A determination of unfitness must center solely on the parent's ability to provide for the child in a...