Custody. Hart Superior Court. Before Judge Hodges.
Judy D. Jarecki-Black, Alston & Bird, Matthew W. Howell, for appellant.
Margaret N. Dyal, for appellee.
Doyle, Presiding Judge.
Shannon Lee Floyd (" the father" ) appeals the superior court's denial of his motion for new trial following the entry of a final order awarding custody of his children to Sherry Anne Gibson, the children's maternal grandmother (" the grandmother" ). Floyd argues that the trial court applied the incorrect standard and that the evidence did not support the court's custody determination. For the reasons that follow, we vacate the judgment and remand the case for reconsideration.
The record shows that the father and mother, who never married, have three minor children. In May 2013, the Hart County Department of Family and Children Services (" DFCS" ) removed the children from the custody of their mother and placed them with the grandmother following the mother's drug overdose. On May 14, 2013, the grandmother filed the instant petition for custody of the children. On July 12, 2013, the father, who had not legitimated the children, answered and filed a counterclaim for custody. On July 17, 2013, following a hearing, the trial court awarded temporary custody to the grandmother. On September 17, 2013, the court entered an order legitimating the children. Following a custody hearing and briefing by the parties, the trial court awarded custody to the grandmother on November 5, 2013. The father filed a motion for new trial, which was denied, and this appeal followed.
1. The father argues that the trial court failed to apply the proper standard in determining custody.
a parent has a right of custody to h[is] child[ren] in preference to a third party unless there is clear and convincing evidence that the parent is unfit. The focus of such a determination of unfitness must be the parent's ability to provide for the child[ren] in a manner sufficient to preclude the need for an entity of the government to intervene and separate the [331 Ga.App. 302] child[ren] from the parent, and a court is not permitted to terminate a parent's natural right to custody merely because it believes that the child[ren] might have better financial, educational[,] or moral advantages elsewhere, that is, the parent's ability to raise h[is] child[ren] is not to be compared to the fitness of a third person.
OCGA § 19-7-1 (b.1), which governs custodial disputes between a parent and certain third-party relatives, establishes " a rebuttable presumption that it is in the best interest of the ... children for custody to be awarded to the ... parents of such ... child[ren]." In Clark v. Wade, a plurality decision, the Supreme Court of Georgia concluded that there are three presumptions 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[ren], and (3) the child[ren]'s best interest is to be in the custody of a parent." 
Under OCGA § 19-7-1 (b.1), a parent may lose custody of his children to certain relatives only
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 ...