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The Final (?) Word in Georgia Law on Third-Party Rights versus Parental Rights

by merlin on January 1st, 2013
  • Sumo

Happy New Year!

This is a redacted version of a condensed statement.  I apologize if it is just an excerpt of past notes, but I am working on something different and much longer, that takes too much of my attention to properly give energy to this site right now.  I will edit and post the results of my labor after I finish some of it!

From at least the 1952 case of Carnes v. Carnes, 298 Ga. 649, Georgia has followed a basic premise CONSISTENTLY – for a third party to have any claim to custody, it must first be found that the biological parent has surrendered or lost her own custody.  Shotwell v. Flip (314 Ga.App. 93, 722 S.E.2d 906 (Ga. Ct. App. 2012)) expressly stated that the voluntary surrender of physical custody over a child by the custodial parent can constitute a material change of condition, and whether this is only temporary or a more lasting change (that leads to the voluntary surrender of parental rights) is something the Court can decide.

There has been a consistent attitude in the law since 1952.  In the 1977 case of Conroy v. Jones, 238 Ga. 321, 232 S.E.2d 917, no factual finding of unfitness in either of the natural parents of the child led to an award of custody to grandparents being reversed.

There has to FIRST be clear and convincing proof of parental unfitness.  In the 1982 Supreme Court case of Santosky v. Kramer, 455 U.S. 745, the Court found that the right in parents is fundamental, and guaranteed, and the State must give due process and terminate parental rights BEFORE it can effect third-party placement .  The case used the best interests of the child standard, via clear and convincing evidence (same as Georgia), except that difference was that the child was actually afraid of the mother and carried a knife now in case she tried to take him.

Clark v. Wade, 273 Ga. 587, 544 S.E.2d 99, 01 FCDR 617 (Ga. 2001) takes this even further.  There must be a finding of ACTUAL PHYSICAL OR MENTAL HARM (not economic or social).

  • Under the best-interests-of-the-child standard for custody dispute between parent and third party relative, three presumptions exist: (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. (Per Fletcher, P.J., with two Justices concurring, one Justice specially concurring, and one Justice concurring in the judgment).
  • Parents have a constitutional right under the United States and Georgia Constitutions to the care and custody of their children, and this right is a fiercely guarded right that should be infringed upon only under the most compelling circumstances.
  • The Court noted that the case did not involve the breakup of a “natural family,” a biological father who had ever sought custody of his child, or the placement of the child with a new set of parents. “Rather, the result of the adoption in this case is to give full recognition to a family unit already in existence.”  P. 595 (quoting 265 Ga. at 194, 454 S.E.2d 769 (1990))


From → child custody

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