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Does a Parent Have to Be Found Unfit for a Grandparent to Be Awarded Custody?

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In Georgia, the law presumes that it is in the best interest of a child for custody to be awarded to the child's parent or parents. However, this presumption may be overcome by a showing that an award of custody to certain third-party relatives would be in the best interest of the child. But does this mean that a grandparent seeking custody will have to show that the child's parents are unfit? The Georgia Court of Appeals recently reconfirmed previous rulings on this issue in the case of Brawner v. Miller, A15A1063, October 22, 2015, in which it held, "a trial court need not explicitly determine that the parent seeking custody is unfit. Rather, the court is instead required to determine that the third-party relative has established by clear and convincing evidence that awarding custody to the parent would cause either physical harm or significant, long-term emotional harm to the child."

In the Brawner case, two children were born to unmarried parents. The parents lived together for the first few years of the children's lives, but separated when the oldest child was approximately four years old and the younger child was approximately two. After the parties separated, the mother moved in with her father, the children's grandfather, and lived primarily with him for the next seven years. The father of the children had only sporadic involvement in the children's lives during this time, despite the fact that he lived only five blocks away from the mother. The father's child support payments to the mother were also inconsistent.

When the oldest child was ten years old, the mother was tragically murdered. Shortly after the mother's death, the father filed a petition with the court seeking to legitimate the children and have custody of them awarded to him. The children's paternal grandfather, with whom they had lived most of their lives, filed a petition to intervene and have custody of the children awarded to him. After a hearing at which the father's parents, as well as members of the deceased mother's family testified, the court granted the father's petition to legitimate the children, but awarded custody of the children to the grandfather with the father having visitation rights.

The father appealed and argued that the trial court should not have awarded custody of the children to the grandfather because the court did not find the father to be an unfit parent. The Appellate Court found that it was not necessary for the trial court to find the father to be unfit. The trial court's ruling was upheld based on its finding that awarding custody to the father would cause significant, long-term emotional harm to the children.

In upholding the trial court's findings, the Appellate Court noted "most importantly … [the father] has interacted with the boys only sporadically since he and their mother separated, visiting them occasionally and attending only a few school events and extra-curricular activities despite living a mere five blocks away from [the mother]. As [the grandfather] testified, and the trial court reiterated, the boys are still struggling emotionally from the sudden and tragic loss of their mother. And although they are beginning to heal from this severe emotional trauma, the healing process will undoubtedly be harmed if they are, at this point in time, uprooted from the only home they have ever known to live with a father who, while perhaps well-meaning, has yet to build a meaningful relationship with them."

By: Margaret E. Simpson, Associate Attorney, Meriwether & Tharp, LLC


Child Custody
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