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Steedley v. Gilbreth

Court of Appeals of Georgia, Third Division

October 9, 2019

STEEDLEY
v.
GILBRETH.

          DILLARD, P. J., GOBEIL and HODGES, JJ.

          Hodges, Judge.

         In this custody dispute, Laura Steedley, the mother of five-year-old C. B. G., appeals a Clinch County Superior Court order awarding custody of the minor child to his maternal grandmother, Diane Gilbreth. The mother contends the trial court erred in (1) awarding custody without making findings of fact, (2) failing to afford the mother the statutory presumptions regarding fitness and the best interest of the child, (3) awarding custody based on insufficient evidence, and (4) denying her motion to transfer venue to Lowndes County. For the reasons that follow, we vacate the trial court's order and remand for reconsideration consistent with this opinion.

         The record shows that C. B. G. was born out of wedlock, and the father has not legitimated or had any contact with him. C. B. G. and the mother lived with the grandmother for a number of years until the mother moved out to live with her husband, at which point the grandmother still provided day care for the child. On May 5, 2018, when C. B. G. was three years old, the grandmother took him from his mother's house because he told the grandmother his mother and step-father "were mean to him." His parents purportedly "hollered at him and they whipped him" and "he was terribly unhappy." The grandmother refused to give C. B. G. back to the mother. On June 18, 2018, the mother drove to the grandmother's house to pick up C. B. G, an altercation ensued, and the grandmother reported the mother as the aggressor.

         The following day, the grandmother filed a petition for custody, obtained an emergency, ex parte temporary order of custody, and, with the help of the sheriff's department, took the child back from the mother. This order did not contain any findings of fact or details regarding the custody award. The mother attempted to appeal the order, but we dismissed the appeal because it was untimely. Steedley v. Gilbreth, Case No. A19A0327 (dismissed Oct. 4, 2018). The judge who issued the emergency order subsequently disqualified himself, and a senior judge was appointed to preside over the case. Following an evidentiary hearing, the senior judge issued a December 31, 2018 temporary order continuing custody with the grandmother. The mother timely appeals from this order.

         Custody disputes between a parent and close third-party relatives, including grandparents, are governed by OCGA § 19-7-1 (b.1). This statute mandates as follows:

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, 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 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.

         The following three presumptions are 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, and (3) the child's best interest is to be in the custody of a parent." Clark v. Wade, 273 Ga. 587, 593 (II) (544 S.E.2d 99) (2001); Jewell v. McGinnis, 346 Ga.App. 733, 736 (1) (816 S.E.2d 683) (2018).

         To overcome the statutory presumption in favor of parental custody, the close third-party relative "must prove by clear and convincing evidence that the child will suffer physical or emotional harm if custody were awarded to the biological parent." Clark, 273 Ga. at 599 (V). Harm is defined as "either physical harm or significant, long-term emotional harm; . . . [not] merely social or economic disadvantages." Id. at 598 (IV). In considering the issues of harm and custody, trial courts should examine a variety of factors, including

(1) who are the past and present caretakers of the child; (2) with whom has the child formed psychological bonds and how strong are those bonds; (3) have the competing parties evidenced interest in, and contact with, the child over time; and (4) does the child have unique medical or psychological needs that one party is better able to meet.

(Citations omitted.) Id. at 598-599 (IV). According to the Supreme Court, "[a]n analysis of these factors, keeping in mind the statutory presumption of parental custody, will enable courts to award custody to a third-party relative only when a real threat of harm would result from parental custody." Id. at 599 (IV).

         Once the close third-party relative has established by clear and convincing evidence that parental custody would result in harm, this relative must then show "that an award of custody to him or her will best promote the child's health, welfare, and happiness." Clark, 273 Ga. at 598 (IV); see OCGA § 19-7-1 (b.1). When reviewing cases concerning parents and their children, we must also keep in mind that

there is no judicial determination which has more drastic significance than that of permanently severing a natural parent-child relationship. It must be scrutinized deliberately and exercised most cautiously. The right to raise one's children is a fiercely guarded right in our society and law, and a right ...

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