The information in this guide comes in part from Georgia Divorce, Alimony & Child Custody by Dan McConaughey (2011-2012 ed., copyright by Thomson-Reuters), supplemented by the Official Code of Georgia.
Best Interests of the Child Between a Parent and a Third Party
Georgia (rebuttable) presumptions in favor of a parent:
- The parent is fit and entitled to custody;
- A fit parent acts in the best interests of the child; and
- To be in the custody of the parent is in the child’s best interest
This is a rebuttable presumption, which means that sufficiently persuasive evidence contrary to the particular presumption in favor of the parent in a contest between the parent and a third party would overcome the presumption.
The third party is required to show:
(1) Parental custody would affirmatively harm the child (to overcome the statutory presumption; a finding of deprivation in juvenile court would probably suffice for this, as where a parent is imprisoned and the remaining parent surrenders their rights, leaving the child statutorily deprived);
(2) The award to the third party will best promote the child’s health, welfare, and happiness.
These factors for a showing of the “best interest” evaluation come from O.C.G.A. § 19-7-1(b.1), but the cases have construed the standard as one of clear and convincing evidence. To meet the showing, must demonstrate that parental control would result in “significant, long-term emotional harm”. Burke v. King, 254 Ga.App. 351, 562 S.E.2d 271 (2002).
The important aspect of this legal reasoning is the focus, not on parental rights, but instead on the welfare of the child. The right of a parent to custody may be relinquished by contract, the parent’s bad character and immoral habits, or by the misfortune of the parent in not being able to give the child the legally-required level of care and support.
IN OTHER WORDS, MERE “LOVE” FOR THE CHILD ISN’T ENOUGH.
The factors that can be used to establish the “best interest of the child” include:
- Affection, stimulation, and unbroken continuity of affection
- Emotional ties
- Respective environments of the parties and the child
- The child’s preferences
- Age, health, and sex
Between fit parents, the only test is the best interest of the child.
Between a third party and a parent who lost their rights, neither party has any prima facie right to custody, and a pre-existing award of custody by the Court to the third party takes preference, unless some new and material circumstances arise. If the child is deemed "deprived" (and especially if there is an Order in place expressly finding that), the parental prima facie right can be overcome. The factors that go into a finding of deprivation - and the consequent loss of parental power - are detailed in the Code, Section 19-7-1(b). That subsection holds as follows:
(b) Parental power shall be lost by:
(1) Voluntary contract releasing the right to a third person;
(2) Consent to the adoption of the child by a third person;
(3) Failure to provide necessaries for the child or abandonment of the child [note - an imprisoned parent is necessarily unable to provide necessaries for the child];
(4) Consent to the child's receiving the proceeds of his own labor, which consent shall be revocable at any time;
(5) Consent to the marriage of the child, who thus assumes inconsistent responsibilities; or
(6) Cruel treatment of the child.
(b.1) 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 thechild or children.