Domestic relations. Gwinnett Superior Court. Before Judge Franzen, pro hac vice.
Alan Mullinax & Associates, Alan Mullinax, Zachary R. Stepp, for David E. Stone.
Anna Stone, pro se.
Lawrence L. Washburn III, for Webb.
MELTON, Justice. All the Justices concur, except Benham and Hunstein, JJ., who dissent. HUNSTEIN, Justice, dissenting.
Pursuant to Supreme Court Rule 34, we granted David E. Stone's (Husband) application to appeal the final decree entered in his divorce from Anna Stone (Wife). In doing so, we stated our specific interest in determining whether the trial court erred by awarding joint legal custody of the parties' minor son to Husband and Sandra [297 Ga. 452] Webb, the maternal grandmother (Grandmother). Because Georgia statutory law supports joint custody arrangements only between parents, we must reverse the award of joint legal custody in this case.
As is pertinent here, the record shows that Husband and Wife have been married to each other twice, and they have one minor son. Husband and Wife were divorced the second time by a decree dated January 13, 2014, and this decree incorporated a parenting plan. Among other things, the parenting plan awarded joint legal custody of the minor child to Husband, who the court specifically found was a fit parental custodian, and Grandmother. Husband was given primary physical custody, Grandmother was given visitation rights, and Wife, who the court found was unfit to have custody, was given only a potential for future visitation.
In the Georgia Code, our legislature has clearly indicated that joint custody arrangements do not include third parties when one or both parents are suitable custodians. OCGA § 19-9-3, which lays out the general guidelines for custody considerations, shows a recognition that joint custody considerations remain with the parents of the child. OCGA § 19-9-3 (a) (1) provides:
In all cases in which the custody of any child is at issue between the parents, there shall be no prima-facie right to the custody of the child in the father or mother. There shall be no presumption in favor of any particular form of custody, legal or physical, nor in favor of either parent. Joint custody may be considered as an alternative form of custody by the judge and the judge at any temporary or permanent hearing may grant sole custody, joint custody, joint legal custody, or joint physical custody as appropriate.
(Emphasis supplied.) The statute goes on to state an express desire to preserve sharing of rights between parents and visitation with parents and grandparents. OCGA § 19-9-3 (d) states:
It is the express policy of this state to encourage that a child has continuing contact with parents and grandparents who [297 Ga. 453] have shown the ability to act in the best interest of the child and to encourage parents to share in the rights and responsibilities of raising their child after such parents have separated or dissolved their marriage or relationship.
(Emphasis supplied.) Quite explicitly, the statute includes grandparents with parents for purposes of contact (visitation) with the minor child, but, when rights and responsibilities (custody) are in consideration, the statute excludes grandparents and encourages sharing between the parents only.
This express policy is then employed in the definitions of key terms in the statute. OCGA § 19-9-6 (5) explains:
" Joint legal custody" means both parents have equal rights and responsibilities for major decisions concerning the child, including the child's education, health care, extracurricular activities, and religious training; provided, however, that the judge may designate one parent to have sole power to make certain decisions while both parents retain equal rights and responsibilities for other decisions.
(Emphasis supplied.) Once more, the statute pairs " rights and responsibilities" solely with the parents, and grandparents are excluded. This is to be expected, as the stated definition of " joint legal custody" furthers the express policy of encouraging shared rights and responsibilities between parents. To a similar end, the statute states that " '[j]oint physical custody' means that physical custody is shared by the parents in such a way as to assure the child of substantially equal time and contact with both parents." (Emphasis ...