Most custody disputes take place between two biological parents. However, sometimes, other family members get involved. In Georgia, only certain family members (grandparents, great-grandparents, aunts, uncles, great-aunts, great-uncles, siblings and adoptive parents) have standing to file a custody dispute against a biological parent. OCGA §19-7-1(b.1). Even in those cases, there is 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 children 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” Id. There are three constitutionally based presumptions that must be overcome: “(1) the parent is a fit person entitled to custody, (2) a fit parent acts in the best interests of his or her child, and (3) the child’s best interest is to be in the custody of a parent.” Trotter v. Ayres, 315 Ga. App. 7, 8-9 (2011). A third party family member (listed above) can only overcome these presumptions by showing “by clear and convincing evidence, that parental custody would harm the child. Id. After these presumptions are overcome, “the third party relative must then ‘prove that an award of custody to him or her will best promote the child’s health, welfare, and happiness.” This is a difficult standard to meet and shows how much the state values keeping children in the custody of their parents when at all possible.
Nonetheless, the court has no problem awarding custody to a family member when this standard is met, as shown in a recent Court of Appeals of Georgia case on this very issue. Brawner v. Miller, A15A1063 (2015). In Brawner, the father (“Brawner”) and mother were together on and off for several years and had two children together. After their relationship ended, the mother and children moved in with her father (“Miller,” the children’s’ maternal grandfather). During this time, Brawner lived very close to them but rarely saw the children and only occasionally paid child support. After the mother died, a custody dispute ensued, with Miller being awarded custody of the children. Brawner appealed, alleging that the trial court erred in finding that the children would suffer harm if custody was awarded to him.
In its ruling, the Court of Appeals of Georgia laid out several factors that must be considered in determing issue of harm and custody: “(1)who are the past and present caretakers of the child; (2) with whom has the child formed psychological 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.” Brawner, citing Clark v. Wade, 273 Ga. 587, 598 (2001). In this case, the trial court record reflected that the children have never lived with Brawner, they consider Miller’s house to be their home, they have a close relationship with Miller, and, most importantly, Brawner has barely seen the children since he and the mother separated, despite living in close proximity and, presumably, having many opportunities. In addition, the Court reasoned that the children are still struggling with the loss of their mother and uprooting them would certainly cause harm. For these reasons, the Court of Appeals held that the stringent custody standard had been met and affirmed the trial court’s custody award.