MORGAN et al.
MCFADDEN, P. J., MCMILLIAN and GOSS, JJ.
McFadden, Presiding Judge.
grandparents of 13-year-old J. P. appeal the order awarding
custody to his mother. The grandparents argue that the trial
court erred by placing the burden of proof upon them, given
that they are J. P.'s de facto parents, but the court
properly required them to prove that awarding them custody
was in J. P.'s best interests. The grandparents also
challenge the sufficiency of the evidence, but the evidence
supports the trial court's decision. So we affirm.
trial court found the following facts in its final order and
in its order denying the grandparents' motion for new
trial and motion for reconsideration. See Strickland v.
Strickland, 298 Ga. 630, 633-634 (1) (783 S.E.2d 606)
grandparents have been the primary custodians of J. P. for
most of his life, but the parties contemplated the eventual
return of custody to his mother. In 2008, the parties, along
with J. P.'s now-deceased father who was the
grandparents' son, entered a consent order that awarded
custody of J. P. to the grandparents. The order expressly
stipulated that, "[a]t such time as [the mother and the
now-deceased father] are physically and mentally able to care
for J. P., they may [p]etition . . . for a hearing and change
of custody." In 2014 (by which time the father had
died), the parties entered another consent order, agreeing to
share joint legal custody and to allow the mother significant
visitation with the child. The trial court found that these
orders demonstrated the parties' intent that the mother
could eventually regain custody.
trial court found that after the entry of the 2008 consent
order, the mother began making changes to qualify her to
regain custody. She is employed and has a stable home. She
has visited J. P. regularly for years and has been a fit
parent for J. P.'s sister - who is the grandparents'
granddaughter. According to the trial court, the mother
indicated that, if awarded custody, she would ensure that J.
P. is able to continue participating in Scouting and other
activities he enjoys.
trial court found that J. P. has unique psychological needs.
The court specified that he has experienced stress and
discomfort because of the lack of certainty about his
custody; that the risk of him experiencing emotional harm due
to a significant change in his circumstances is elevated;
that he has received treatment from mental health
professionals to help him cope with stressful family
situations and with the trauma he experienced; and that as
long as he continues to receive this treatment, the risk of
emotional harm is substantially mitigated. The mother has
contacted the mental health professionals treating J. P. to
find appropriate professionals to take over his treatment,
given the distance between the professionals already treating
J. P. and her residence. The court found that either party,
so long as they continue with recommended treatment for J.
P., is capable of meeting his needs. The court concluded that
the mother is a fit parent and that if custody were returned
to her, J. P. would not suffer either physical harm or
significant, long-term emotional harm.
Burden of proof.
grandparents argue that the trial court erroneously placed
the burden of proof upon them. They rely on Durden v.
Barron, 249 Ga. 686 (290 S.E.2d 923) (1982), in which
our Supreme Court ruled that, "Where a parent was a
party to a proceeding in which his or her right to custody
was lost and custody was permanently awarded to a third
party, the parent does not have a prima facie right to
custody." Id. at 686 (1). The court elaborated
[o]nce a third party has been awarded permanent custody of a
child in a court proceeding to which a parent was a party,
the roles of the parent and the third party reverse; that is,
the third party now has the prima facie right to custody as
against the parent who has lost the right to custody. The
parent can regain custody upon showing by clear and
convincing evidence his or her present fitness as a parent
and that it is in the best interest of the child that custody
Id. at 686 (2).
child-custody disputes involving a biological parent and a
limited number of third parties who are related to the child,
including grandparents, are governed by OCGA § 19-7-1
(b.1) (in accordance with the fundamental constitutional
right of familial relations), which provides: [I]n any action
involving the custody of a child between the parents or
either parent and a third party limited to grandparent,
great-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 ...