(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 the child or children.
(Orig. Code 1863, § 1744; Code 1868, § 1784; Code 1873, § 1793; Code 1882, § 1793; Civil Code 1895, § 2502; Civil Code 1910, § 3021; Code 1933, § 74-108; Ga. L. 1979, p. 466, § 43; Ga. L. 1980, p. 1154, § 1; Ga. L. 1987, p. 619, § 1; Ga. L. 1988, p. 1720, § 3; Ga. L. 1991, p. 94, § 19; Ga. L. 1996, p. 412, § 1; Ga. L. 2000, p. 1509, § 1; Ga. L. 2006, p. 141, § 4/HB 847; Ga. L. 2010, p. 878, § 19/HB 1387; Ga. L. 2013, p. 294, § 4-22/HB 242; Ga. L. 2014, p. 780, § 1-47/SB 364; Ga. L. 2019, p. 711, § 6/HB 481.)
The 2019 amendment, effective January 1, 2020, added the second sentence in paragraph (c)(1).
Cross references.- Grounds for order by juvenile court terminating parental rights, § 15-11-81.
Criminal penalty for cruelty to children, § 16-5-70.
Parental power over illegitimate child, § 19-7-25.
Parents as natural guardians of minor child, § 29-2-3.
Age of majority, § 39-1-1.
Code Commission notes.- Pursuant to Code Section 28-9-5, in 1996, a comma was inserted following "sibling" in the first sentence of subsection (b.1).
Editor's notes.- Ga. L. 2013, p. 294, § 5-1/HB 242, not codified by the General Assembly, provides that: "This Act shall become effective on January 1, 2014, and shall apply to all offenses which occur and juvenile proceedings commenced on and after such date. Any offense occurring before January 1, 2014, shall be governed by the statute in effect at the time of such offense and shall be considered a prior adjudication for the purpose of imposing a disposition that provides for a different penalty for subsequent adjudications, of whatever class, pursuant to this Act. The enactment of this Act shall not affect any prosecutions for acts occurring before January 1, 2014, and shall not act as an abatement of any such prosecutions."
Ga. L. 2019, p. 711, § 1/HB 481, not codified by the General Assembly, provides: "This Act shall be known and may be cited as the 'Living Infants Fairness and Equality (LIFE) Act.'"
Ga. L. 2019, p. 711, § 2/HB 481, not codified by the General Assembly, provides: "The General Assembly of Georgia makes the following findings:
"(1) In the founding of the United States of America, the State of Georgia and the several states affirmed that: 'We hold these Truths to be self-evident, that all Men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the Pursuit of Happiness - that to secure these Rights, Governments are instituted among men;'
"(2) To protect the fundamental rights of all persons, and specifically to protect the fundamental rights of particular classes of persons who had not previously been recognized under law, the 14th Amendment to the United States Constitution was ratified, providing that, 'nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny any person within its jurisdiction the equal protection of the laws';
"(3) Modern medical science, not available decades ago, demonstrates that unborn children are a class of living, distinct persons and more expansive state recognition of unborn children as persons did not exist when Planned Parenthood v. Casey (1992) and Roe v. Wade (1973) established abortion related precedents;
"(4) The State of Georgia, applying reasoned judgment to the full body of modern medical science, recognizes the benefits of providing full legal recognition to an unborn child above the minimum requirements of federal law;
"(5) Article I, Section I, Paragraphs I and II of the Constitution of the State of Georgia affirm that '[n]o person shall be deprived of life, liberty, or property except by due process of law'; and that '[p]rotection to person and property is the paramount duty of government and shall be impartial and complete. No person shall be denied the equal protection of the laws'; and
"(6) It shall be the policy of the State of Georgia to recognize unborn children as natural persons."
Ga. L. 2019, p. 711, § 13/HB 481, not codified by the General Assembly, provides: "Any citizen of this state shall have standing and the right to intervene and defend in any action challenging the constitutionality of any portion of this Act."
Ga. L. 2019, p. 711, § 14/HB 481, not codified by the General Assembly, provides: "All provisions of this Act shall be severable in accordance with Code Section 1-1-3."
Law reviews.- For article, "Custody Disputes and the Proposed Model Act," see 2 Ga. L. Rev. 162 (1968). For article, "Trusts for Dependents: Effect of Georgia's Support Obligation on Federal Income Taxation," see 8 Ga. St. B.J. 323 (1972). For article, "The Child as a Party in Interest in Custody Proceedings," see 10 Ga. St. B.J. 577 (1974). For article, "The Origins of the Doctrine of Parens Patriae," see 27 Emory L.J. 195 (1978). For article criticizing parental rights doctrine and advocating best interests of child doctrine in parent-third party custody disputes, see 27 Emory L.J. 209 (1978). For article, "Toward an Economic Theory of the Measurement of Damages in a Wrongful Death Action," see 34 Emory L.J. 295 (1985). For article, "Georgia Inheritance Rights of Children Born Out of Wedlock," see 23 Ga. St. B.J. 28 (1986). For annual survey of recent developments, see 38 Mercer L. Rev. 473 (1986). For annual survey on law of domestic relations, see 42 Mercer L. Rev. 201 (1990). For annual survey article discussing developments in domestic relations law, see 52 Mercer L. Rev. 213 (2000). For annual survey of domestic relations law, see 56 Mercer L. Rev. 221 (2004). For annual survey of domestic relations cases, see 57 Mercer L. Rev. 173 (2005). For article on 2006 amendment of this Code section, see 23 Ga. St. U.L. Rev. 79 (2006). For survey article on domestic relations law, see 59 Mercer L. Rev. 139 (2007). For survey article on domestic relations law, see 60 Mercer L. Rev. 121 (2008). For survey article on trial practice and procedure, see 59 Mercer L. Rev. 423 (2007). For survey article on wills, trusts, guardianships, and fiduciary administration, see 59 Mercer L. Rev. 447 (2007). For annual survey on domestic relations law, see 64 Mercer L. Rev. 121 (2012). For annual survey on domestic relations, see 65 Mercer L. Rev. 107 (2013). For article on the 2019 amendment of this Code section, see 36 Ga. St. U.L. Rev. 155 (2019). For review of 1996 domestic relations legislation, see 13 Ga. St. U.L. Rev. 155 (1996). For note, "Not Just For Kids: Why Georgia's Statutory Disinheritance of Deadbeat Parents Should Extend to Intestate Adults," see 43 Ga. L. Rev. 867 (2009). For comment on Wright v. Wright, 85 Ga. App. 721, 70 S.E.2d 152 (1952), see 15 Ga. B.J. 83 (1952). For comment on Porter v. Lassiter, 91 Ga. App. 712, 87 S.E.2d 100 (1955), holding that plaintiff who alleged that injuries she received while one and one-half months pregnant, later caused the death of the unborn child had stated a cause of action and could maintain a suit for the wrongful death of the child, see 18 Ga. B.J. 98 (1955). For comment on Buttrum v. Buttrum, 98 Ga. App. 226, 105 S.E.2d 510 (1958), holding that an unemancipated minor child may maintain an action in tort against a parent for personal injuries provided that it is a willful and malicious act so cruel as to constitute forfeiture of parental authority, see 21 Ga. B.J. 559 (1959). For comment on consideration of loss of companionship in determining damages for death of a child, in light of Lockhart v. Besel, 426 P.2d 605 (Wash. 1967), see 19 Mercer L. Rev. 266 (1968). For comment discussing trend toward allowance of a wrongful death action for death of an unborn child, see 1 Ga. St. B.J. 508 (1968). For comment on Bodrey v. Cape, 120 Ga. App. 859, 172 S.E.2d 643 (1969), see 7 Ga. St. B.J. 256 (1970). For comment on Barnwell v. Cordle, 438 F.2d 236 (5th Cir. 1971), refusing to apply doctrine of parental immunity to suit brought by minor against father's estate, see 8 Ga. St. B.J. 544 (1972). For comment discussing doctrine of substituted judgment and constitutional underpinnings of a qualified right to refuse medical treatment asserted for an incompetent, in light of Superintendent of Belcherton State School v. Saikewicz, 370 N.E.2d 417 (Mass. 1977), see 27 Emory L.J. 425 (1978). For comment on "Grandparents' Visitation Rights in Georgia," see 29 Emory L.J. 1083 (1980).
JUDICIAL DECISIONSANALYSIS
General Consideration
Legislative intent.
- It was certain that the legislature intended that there be a monetary recovery in all instances of the homicide of a child, whether the child was a minor or an adult. Carringer v. Rodgers, 276 Ga. 359, 578 S.E.2d 841 (2003).
Legislature intends that there always be a right of recovery in the case of the homicide of a child, and because the spouse-murderer is precluded from this right of recovery, the parent has standing to bring a cause of action for the wrongful death of a child in order to recover for the full value of the child's life. Carringer v. Rodgers, 331 F.3d 844 (11th Cir. 2003).
Statute did not purport to deal with subject of adoption. Glendinning v. McComas, 188 Ga. 345, 3 S.E.2d 562 (1939); Wheeler v. Little, 113 Ga. App. 106, 147 S.E.2d 352 (1966).
Statute inapplicable following death of parents.
- Superior court erred in granting an aunt and uncle custody of minor children because the court lacked subject matter jurisdiction to consider the petition for custody since a probate court had exclusive jurisdiction to issue and revoke letters of testamentary guardianship, and O.C.G.A. § 29-2-4(b) mandated the issuance of letters of testamentary guardianship to the brother of the children's father without notice and a hearing and without consideration of the children's best interests; O.C.G.A. § 19-7-1 was inapplicable because the statute was limited to a custody action between a parent and specified relatives, and the children's parents were deceased. Zinkhan v. Bruce, 305 Ga. App. 510, 699 S.E.2d 833 (2010).
Construction with Workers' Compensation Act.
- Workers' Compensation Act, O.C.G.A. § 34-9-1 et seq., does not unconstitutionally conflict with the statutory right of a non-dependent parent to recover for an adult's child death while on the job. Barzey v. City of Cuthbert, 295 Ga. 641, 763 S.E.2d 447 (2014).
Former Code 1933, §§ 49-102 and 74-108 (see now O.C.G.A. §§ 29-2-3 and19-7-1, respectively) must be construed together. McCallum v. Bryant, 212 Ga. 348, 92 S.E.2d 531 (1956).
O.C.G.A. § 19-7-1(b.1) did not give grandparents the right to intervene in adoption proceedings brought by third parties since the parents had voluntarily surrendered their parental rights and agreed to the adoption. Baum v. Moore, 230 Ga. App. 255, 496 S.E.2d 307 (1998).
Guardian appointment under
§ 29-4-4. - No guardian can be appointed under former Civil Code 1910, § 3035 (see now O.C.G.A. § 29-4-4) unless the parents' rights were voluntarily relinquished or forfeited in accordance with the provisions of former Code 1933, § 74-108 (see now O.C.G.A. § 19-7-1). Robison v. Robison, 29 Ga. App. 521, 116 S.E. 19 (1923).
Forfeiture of parents' rights must be declared in regular proceedings, authorized by law, with notice to parent. Robison v. Robison, 29 Ga. App. 521, 116 S.E. 19 (1923).
For discussion of ways in which parental control may be alienated.
- See Morris v. Grant, 196 Ga. 692, 27 S.E.2d 295 (1943).
Termination of parental authority.- Parent's authority over child is terminated at parent's death. Barnwell v. Cordle, 438 F.2d 236 (5th Cir. 1971).
Cruel treatment of child by parent.
- Parent may lose right to control and custody by cruel treatment of child. Mills v. Mills, 218 Ga. 686, 130 S.E.2d 221 (1963).
Evidence as to cruel treatment.
- Evidence is insufficient to justify termination of parental rights under O.C.G.A. § 19-7-1(b)(6) when evidence of cruel treatment consists of one unverified episode in the past. Hays v. Jeng, 184 Ga. App. 157, 360 S.E.2d 913 (1987).
When parent kills mother and maternal grandmother, the parent loses all parental rights and has no parental rights to award custody to the parent's sister, and such a contract is therefore invalid. George v. Anderson, 135 Ga. App. 273, 217 S.E.2d 609 (1975).
Child's better financial, educational, or moral advantages elsewhere.
- Court cannot terminate parental rights because child might have better financial, educational, or moral advantages elsewhere. Carvalho v. Lewis, 247 Ga. 94, 274 S.E.2d 471 (1981).
Grandparents' rights.
- Since the intervention of grandparents into a custody proceeding and an order granting them temporary custody had already occurred, the later adult adoption of the child's father did not extinguish the legal status that the grandparents held; the trial court's subsequent order dismissing the intervention of the grandparents, and setting aside the award of temporary custody to them was reversed. Walls v. Walls, 278 Ga. 206, 599 S.E.2d 173 (2004).
Under O.C.G.A. § 19-7-1(b.1), grandparents were entitled to custody of their two grandchildren given the children's special needs due to autism and developmental delays and the parents' denial of the children's problems and inability to care for the children. Whitehead v. Myers (In the Interest of D. W.), 311 Ga. App. 680, 716 S.E.2d 785 (2011).
Error in procedures involving bifurcation.
- In a suit brought by a biological father to recover one-half of the proceeds of a settlement of a wrongful death action arising out of the death of a son, which the father brought against that child's mother and others, the trial court abused the court's discretion in bifurcating the trial in the manner chosen since the trial court did not follow any of the procedures set forth in O.C.G.A. § 51-12-5.1 regarding punitive damages; secondly, the manner of bifurcation unfairly limited the father's right of cross-examination regarding post-death facts involving allegations by the father that the child's mother and the others took steps to conceal the recovery and to otherwise defraud the father. Bolden v. Ruppenthal, 286 Ga. App. 800, 650 S.E.2d 331 (2007), cert. denied, No. S07C1831, 2007 Ga. LEXIS 756 (Ga. 2007).
Third party acquiring parental powers upon forfeiture by parent retains such power until child's majority, although conditions might arise which would authorize annulment of the contract. Carswell, Moxley & Son v. Harrison, 33 Ga. App. 140, 126 S.E. 293 (1924).
Effect of relinquishment of parental rights upon minor's right to contract.
- Relinquishment of all parental rights and control does not give minor right to contract generally. Wickham v. Torley, 136 Ga. 594, 71 S.E. 881, 36 L.R.A. (n.s.) 57 (1911).
Effect of marriage upon child's emancipation.
- Marriage just as effectively emancipates a child as arrival at majority does. Child is, after such time, to be considered as an adult. Irby v. State, 57 Ga. App. 717, 196 S.E. 101 (1938).
Although some clear and convincing evidence supported the trial court's award of physical custody of the older child to the grandparents, it was necessary to vacate and remand the court's order because the court did not conduct a best interest analysis with regard to the mother's visitation; the visitation order violated the rule against self-executing changes in visitation as the order provided that the mother would lose two visits with the child for every positive drug screen; and the order contained no parenting plan. Mashburn v. Mashburn, 353 Ga. App. 31, 836 S.E.2d 131 (2019).
Cited in Hargrove v. Turner, 112 Ga. 134, 37 S.E. 89, 81 Am. St. R. 24 (1900); Culberson v. Alabama Constr. Co., 127 Ga. 599, 56 S.E. 765, 9 L.R.A. (n.s.) 411, 9 Ann. Cas. 507 (1907); Jones v. McCowen, 34 Ga. App. 801, 131 S.E. 290 (1926); Thompson v. Georgia Ry. & Power Co., 163 Ga. 598, 136 S.E. 895 (1927); Proctor v. Proctor, 164 Ga. 721, 139 S.E. 531 (1927); Dial v. Reid, 166 Ga. 245, 142 S.E. 881 (1928); Hooten v. Hooten, 168 Ga. 86, 147 S.E. 373 (1929); Scott v. Scott, 169 Ga. 290, 150 S.E. 154 (1929); Kite v. Brooks, 51 Ga. App. 531, 181 S.E. 107 (1935); De Loach v. Waters, 54 Ga. App. 386, 188 S.E. 58 (1936); Harwell v. Gay, 186 Ga. 80, 196 S.E. 758 (1938); McComas v. Glendinning, 59 Ga. App. 234, 200 S.E. 304 (1938); Baldwin v. Davis, 188 Ga. 587, 4 S.E.2d 458 (1939); Willingham v. Willingham, 192 Ga. 405, 15 S.E.2d 514 (1941); Durden v. Johnson, 194 Ga. 689, 22 S.E.2d 514 (1942); Bond v. Norwood, 195 Ga. 383, 24 S.E.2d 289 (1943); Bailey v. Warlick, 196 Ga. 642, 27 S.E.2d 322 (1943); Brackett v. Glaze, 72 Ga. App. 314, 33 S.E.2d 733 (1945); Kehely v. Kehely, 200 Ga. 41, 36 S.E.2d 155 (1945); Phillips v. Phillips, 203 Ga. 106, 45 S.E.2d 621 (1947); Skinner v. Skinner, 204 Ga. 635, 51 S.E.2d 420 (1949); Cons v. Wipert, 207 Ga. 621, 63 S.E.2d 370 (1951); Carnes v. Carnes, 208 Ga. 649, 68 S.E.2d 579 (1952); Garden City Cab Co. v. Ransom, 86 Ga. App. 247, 71 S.E.2d 443 (1952); Hedquist v. Gottke, 209 Ga. 681, 75 S.E.2d 18 (1953); Altree v. Head, 90 Ga. App. 601, 83 S.E.2d 683 (1954); Hansen v. Carpenter, 211 Ga. 785, 89 S.E.2d 196 (1955); Boge v. McCollum, 212 Ga. 214, 91 S.E.2d 619 (1956); McCallum v. Bryant, 212 Ga. 348, 92 S.E.2d 531 (1956); McCallum v. Bryant, 93 Ga. App. 214, 91 S.E.2d 194 (1956); Stuckey v. Jones, 212 Ga. 495, 93 S.E.2d 719 (1956); Bridgman v. Elders, 213 Ga. 257, 98 S.E.2d 547 (1957); Thompson v. Thompson, 214 Ga. 618, 106 S.E.2d 788 (1959); Blakemore v. Blakemore, 217 Ga. 174, 121 S.E.2d 642 (1961); Blood v. Earnest, 217 Ga. 642, 123 S.E.2d 913 (1962); Adams v. State, 218 Ga. 130, 126 S.E.2d 624 (1962); Jordan v. Jordan, 218 Ga. 246, 127 S.E.2d 301 (1962); Cohen v. Sapp, 110 Ga. App. 413, 138 S.E.2d 749 (1964); Queen v. Ballew, 221 Ga. 1, 142 S.E.2d 841 (1965); Peck v. Shierling, 222 Ga. 60, 148 S.E.2d 491 (1966); Georgia Mut. Ins. Co. v. Nix, 113 Ga. App. 735, 149 S.E.2d 494 (1966); James v. Bowen, 224 Ga. 289, 161 S.E.2d 277 (1968); Ulm v. Westbrook, 230 Ga. 133, 196 S.E.2d 128 (1973); Ball v. State, 137 Ga. App. 333, 223 S.E.2d 743 (1976); Sanchez v. Walker County Dep't of Family & Children Servs., 237 Ga. 406, 229 S.E.2d 66 (1976); Quilloin v. Walcott, 238 Ga. 230, 232 S.E.2d 246 (1977); Conroy v. Jones, 238 Ga. 321, 232 S.E.2d 917 (1977); Derby v. Kim, 238 Ga. 429, 233 S.E.2d 156 (1977); Cox v. Mills, 238 Ga. 374, 233 S.E.2d 353 (1977); Skipper v. Smith, 239 Ga. 854, 238 S.E.2d 917 (1977); Whiteside v. Dickerson, 240 Ga. 54, 239 S.E.2d 377 (1977); Burton v. Daniel, 240 Ga. 805, 242 S.E.2d 586 (1978); Higbee v. Tuck, 242 Ga. 376, 249 S.E.2d 62 (1978); Fleming v. Reeves, 243 Ga. 411, 254 S.E.2d 362 (1979); Smith v. Houston, 244 Ga. 113, 259 S.E.2d 93 (1979); Bryant v. Wigley, 246 Ga. 155, 269 S.E.2d 418 (1980); Lewis v. Lewis, 154 Ga. App. 853, 269 S.E.2d 919 (1980); Hicks v. Fulton County Dep't of Family & Children Servs., 155 Ga. App. 1, 270 S.E.2d 254 (1980); McDaniel v. Bliss, 156 Ga. App. 166, 274 S.E.2d 138 (1980); Wright v. Hanson, 248 Ga. 523, 283 S.E.2d 882 (1981); Spires v. Lance, 167 Ga. App. 331, 306 S.E.2d 317 (1983); Edenfield v. Jackson, 251 Ga. 491, 306 S.E.2d 911 (1983); Reliance Ins. Co. v. Bridges, 168 Ga. App. 874, 311 S.E.2d 193 (1983); Sims v. Sims, 171 Ga. App. 99, 318 S.E.2d 805 (1984); Sutter v. Turner, 172 Ga. App. 777, 325 S.E.2d 384 (1984); In re M.A.F., 254 Ga. 748, 334 S.E.2d 668 (1985); In re A.W., 198 Ga. App. 391, 401 S.E.2d 560 (1991); Queen v. Carey, 210 Ga. App. 41, 435 S.E.2d 264 (1993); Stegman v. Horton Homes, Inc., 845 F. Supp. 1571 (M.D. Ga. 1994); Grantham v. Grantham, 224 Ga. App. 1, 479 S.E.2d 370 (1996); Stalvey v. Bates, 251 Ga. App. 895, 555 S.E.2d 477 (2001); Mason v. Ford Motor Co., 307 F.3d 1271 (11th Cir. 2002); In re Adoption of D.J.F.M., 284 Ga. App. 420, 643 S.E.2d 879 (2007); Morris v. Morris, 309 Ga. App. 387, 710 S.E.2d 601 (2011), overruled on other grounds by Mathenia v. Brumbelow, 2020 Ga. LEXIS 353 (Ga. 2020); In the Interest of B. H.-W., 332 Ga. App. 269, 772 S.E.2d 66 (2015); Stone v. Stone, 297 Ga. 451, 774 S.E.2d 681 (2015); Mathenia v. Brumbelow, 308 Ga. 714, 843 S.E.2d 582 (2020).
Contractual Relinquishment of Parental Rights
Parental consent required for contractual relinquishment of parental rights.
- One parent cannot contract away custody of child to third party without other parent's consent. Foltz v. Foltz, 238 Ga. 193, 232 S.E.2d 66 (1977).
Third party with custody and relinquishment.
- Since legal right to minor child was in mother, the court erred in granting custody to third parties on the ground that the father, who was first awarded custody but was deceased at the time of the mother's action for custody of the child, had given the child to third parties, that they had the child since, and were fit and proper parties to have custody, as custody could only be taken from the parent having the legal right thereto by showing that she had lost her parental rights under the statute, or by clear and satisfactory proof, that she was an unfit person to have custody. Peck v. Shierling, 222 Ga. 60, 148 S.E.2d 491 (1966), later appeal, 223 Ga. 1, 152 S.E.2d 868 (1967).
When mother gives away child and father acquiesces.
- If mother gives her infant child to another, who takes and cares for the infant, and the father acquiesces in this disposition of the child, he is bound by the disposition. Eaves v. Fears, 131 Ga. 820, 64 S.E. 269 (1909); Manning v. Crawford, 8 Ga. App. 835, 70 S.E. 959 (1911).
Father's transfer of parental authority if wife is dead.
- Ordinarily, a father may transfer and assign his parental authority if wife is dead. Lucas v. Smith, 201 Ga. 834, 41 S.E.2d 527 (1947).
Voluntary contract releasing parental rights must be clear, definite, and unambiguous.
- When it is insisted that a parent has relinquished right to custody and control of minor child to third person by voluntary contract, a clear and strong case must be made, and terms of contract, to have effect of depriving parent of control, should be clear, definite, and unambiguous. Waldrup v. Crane, 203 Ga. 388, 46 S.E.2d 919 (1948); Rawdin v. Conner, 210 Ga. 508, 81 S.E.2d 461 (1954); Southern Ry. v. Neeley, 101 Ga. App. 488, 114 S.E.2d 283 (1960).
While it is true that parental control may be lost by voluntary contract, terms of such contract must be clear, definite, and unambiguous. Sailors v. Spainhour, 98 Ga. App. 475, 106 S.E.2d 82 (1958).
Terms of contract must be definite and unambiguous and established by clear and satisfactory proof. Shaddrix v. Womack, 231 Ga. 628, 203 S.E.2d 225 (1974).
O.C.G.A. § 19-7-1 provides that parental power may be lost by voluntary contract, but the evidence must establish the clear, definite, and unambiguous terms of such a contract before a relinquishment of parental rights will be found. Blackburn v. Blackburn, 168 Ga. App. 66, 308 S.E.2d 193 (1983).
Contract by which parents lose control of minor child must be clear, definite, and certain. Miller v. Wallace, 76 Ga. 479, 2 Am. St. R. 48 (1886); Looney v. Martin, 123 Ga. 209, 51 S.E. 304 (1905); Richards v. McHan, 129 Ga. 275, 58 S.E. 839 (1907); Manning v. Crawford, 8 Ga. App. 835, 70 S.E. 959 (1911); Broxton v. Fairfax, 149 Ga. 122, 99 S.E. 292 (1919); Saxon v. Brantley, 174 Ga. 641, 163 S.E. 504 (1932).
It is not essential that evidence as to contract shall be undisputed. Miller v. Wallace, 76 Ga. 479, 2 Am. St. R. 48 (1886); Looney v. Martin, 123 Ga. 209, 51 S.E. 304 (1905); Richards v. McHan, 129 Ga. 275, 58 S.E. 839 (1907); Manning v. Crawford, 8 Ga. App. 835, 70 S.E. 959 (1911); Broxton v. Fairfax, 149 Ga. 122, 99 S.E. 292 (1919).
Parents' consent to adoption of child by sister has effect of transferring parental rights. Jordan v. Smith, 5 Ga. App. 559, 63 S.E. 595 (1909).
Consent to adoption cannot be revoked as a matter of right.
- Parental power shall be lost by consenting to adoption of child by third person and such consent may not be revoked as a matter of right. Smith v. Munday, 228 Ga. 411, 185 S.E.2d 905 (1971).
Release of parental authority to another is not revocable absent some sufficient legal reason; a mere change in mind on the part of the parent consenting is not such legal cause as will revoke consent. Sessions v. Oliver, 204 Ga. 425, 50 S.E.2d 54 (1948).
Custodial parents do not have to prove mother unfit.
- In an action by mother to set aside and/or vacate an order granting permanent custody of her minor child to her aunt and uncle, since the mother had surrendered parental rights by voluntary contract, the aunt and uncle were not required to plead and prove that she was an unfit parent. Faulkenberry v. Elkins, 213 Ga. App. 472, 445 S.E.2d 283 (1994).
Giving child to another who thereafter provides support and maintenance.
- Gift of child by plaintiff mother to defendants and their acceptance, followed by their personal care of child and their expenditures for the child's support and maintenance, may constitute a relinquishment contract binding on the plaintiff. Bougus v. Smith, 219 Ga. 493, 133 S.E.2d 13 (1963).
Evidence sufficient to establish binding contract.
- Documents executed by the biological mother granting "custody" of her child to the petitioner and allowing the petitioner to take her child for medical treatment were, alone, insufficient to establish a contract for the relinquishment of parental rights; however, this evidence, along with other evidence showing the biological mother's desire to sever the parental relation and throw off all obligations growing out of that relation, was more than sufficient to establish a binding relinquishment contract. In re A.M.Y., 189 Ga. App. 847, 377 S.E.2d 893 (1989).
Agreement giving father custody is not relinquishment of mother's rights.
- Custody agreement under which father is to have custody of child with right of mother to visit child at anytime she desires and to have child visit her at any time and to have child in her home for visits does not amount to a relinquishment of the mother's rights to a third person within the meaning of the statute. Land v. Wrobel, 220 Ga. 260, 138 S.E.2d 315 (1964).
Father's acquiescence in divorce decree awarding mother custody.
- Acquiescence of father in divorce decree placing custody of child in mother would not serve as contract releasing right of parental power to third persons, nor could such evidence be used to show abandonment. Howell v. Gossett, 234 Ga. 145, 214 S.E.2d 882 (1975).
Contract of separation does not release parental rights. McCarter v. McCarter, 10 Ga. App. 754, 74 S.E. 308 (1912).
Relinquishment of rights acquired by grandparents.
- Just as contract by which parent relinquishes rights to custody of child to grandparents must be clearly and unmistakably shown, so with equal clearness and certainty it must be made to appear that grandparents surrendered rights thus acquired. Cannady v. Yawn, 193 Ga. 270, 18 S.E.2d 461 (1942).
Contract relinquishing parental rights entered into after abandonment.
- Mother who left newborn child covered with dirt and straw in woods had abandoned child prior to making of contract relied upon by plaintiff grandmother in seeking custody of the child, and the trial court did not err in awarding custody of the child to the defendants. Benjamin v. Bush, 208 Ga. 453, 67 S.E.2d 476 (1951).
Surrender of parental rights invalidated by failure of intended adoption.
- When an intended adoption fails due to a lack of compliance with the adoption statutes, an alleged surrender of parental rights will not then be upheld under O.C.G.A. § 19-7-1(b)(1) as such a procedure would tend to vitiate the policies underlying the adoption statutes. Johnson v. Smith, 251 Ga. 1, 302 S.E.2d 542 (1983).
Guardianship represented to be temporary.
- Parental rights are not voluntarily relinquished when guardianship at the time of the guardianship's creation was intended to be, or was represented to be, temporary in nature. Hays v. Jeng, 184 Ga. App. 157, 360 S.E.2d 913 (1987).
Best interests analysis required.
- Trial court erroneously found that the court had no discretion to consider whether the parties' agreement, voluntarily terminating the father's parental rights under O.C.G.A. § 19-7-1 as part of the divorce settlement, was in the best interests of the child; the trial court, which had authority under O.C.G.A. § 19-9-5(b) to reject a custody agreement as being against the child's best interests and which had authority under O.C.G.A. § 15-11-94(a) to ascertain whether a voluntary termination was in the child's best interests, was to reject the agreement if it was not in the child's best interests. Taylor v. Taylor, 280 Ga. 88, 623 S.E.2d 477 (2005).
Failure to Provide Necessaries or Abandonment
Parental power is lost by failure to provide necessaries for child. Wigley v. Mobley, 101 Ga. 124, 28 S.E. 640 (1897).
Restoration of lost parental power.
- Parental power lost by failure to provide necessaries for child is restored by reconciliation and resumption of parental control. Wigley v. Mobley, 101 Ga. 124, 28 S.E. 640 (1897).
"Necessities of life" defined.
- Phrase "the necessities of life" includes something more than mere food, clothing, and shelter. It includes, in addition to those elements, at least, provision for adequate medical attention reasonably necessary to restore a broken and diseased body to wholeness and to health. Failure to procure such medical attention when needed by a child, and when such failure is caused, not by ignorance, but by indifference, neglect, or negligence of the parent having custody, may amount to failure to provide necessities of life such as would authorize a finding that the parent has lost parental control as provided in statute. West v. West, 228 Ga. 397, 185 S.E.2d 763 (1971).
Forfeiture of parental rights for failure to support minor child.
- Parent who willfully fails to support minor child forfeits parental rights, an incident of which is authority to object to adoption of child by another. Sale v. Leachman, 218 Ga. 834, 131 S.E.2d 185 (1963).
"Paltry" contribution not considered abandonment.- Mother who saw her daughter four times over a four-year period, telephoned her mother-in-law's residence where her daughter often lived a total of 60 times, and telephoned her daughter's father's residence five times, although her contribution to her daughter may have been "paltry," did not abandon her daughter prior to her death; thus, the mother had not forfeited her parental rights and was the proper party to bring an action for her daughter's death when the daughter's father had also died in the same car accident which killed the daughter. Jahn v. Wilson Freight Lines, 793 F. Supp. 1083 (M.D. Ga. 1992), aff'd, 12 F.3d 219 (11th Cir. 1993).
Abandonment.
- Parental right of custody and control may be lost by abandonment. Benjamin v. Bush, 208 Ga. 453, 67 S.E.2d 476 (1951).
Father lacked standing to recover for the child's wrongful death pursuant to O.C.G.A. §§ 19-7-1(c) and51-4-4 as the father abandoned the child pursuant to O.C.G.A. § 19-7-1(b)(3); the father never supported the child, nor did the father ever visit the child in the many years after the child's hospitalization in infancy, there was no evidence that the father attempted to learn where the child resided in order to initiate visitation or support, and the father was obligated under O.C.G.A. § 19-7-2 to support the child, even though the divorce decree did not require it. Baker v. Sweat, 281 Ga. App. 863, 637 S.E.2d 474 (2006).
Proof required to show failure to provide necessaries or abandonment.
- Loss of custody for failure to provide necessaries requires clear and strong case. Brown v. Newsome, 192 Ga. 43, 14 S.E.2d 470 (1941); Hill v. Rivers, 200 Ga. 354, 37 S.E.2d 386 (1946); Roebuck v. Calhoun, 201 Ga. 496, 40 S.E.2d 142 (1946); McClain v. Smith, 207 Ga. 641, 63 S.E.2d 663 (1951); Hale v. Henderson, 210 Ga. 273, 79 S.E.2d 804 (1954); Locke v. Grimes, 211 Ga. 447, 86 S.E.2d 303 (1955).
When mother of child is dead, father has prima facie right of custody, and in order to sustain contention that he has lost his parental power by reason of failure to provide necessaries for his child or by abandonment of his family, a clear and strong case must be made. Chambers v. Lee, 215 Ga. 629, 112 S.E.2d 614 (1960).
Various expressions used to describe standard for finding abandonment or unfitness, "clear and strong," "clear and satisfactory," "substantial and convincing," and "clear and convincing" mean the same thing. Miele v. Gregory, 248 Ga. 93, 281 S.E.2d 565 (1981).
In order to find an abandonment, there must be sufficient evidence of an actual desertion, accompanied by the intention to sever entirely, as far as possible to do so, the parental relation, throw off all obligations growing out of the relationship, and forego all parental duties and claims. In re S.H., 181 Ga. App. 438, 352 S.E.2d 621 (1987); Hays v. Jeng, 184 Ga. App. 157, 360 S.E.2d 913 (1987).
Mere delivery of custody of child to another is not sufficient to constitute abandonment. Shaddrix v. Womack, 231 Ga. 628, 203 S.E.2d 225 (1974).
Mother's surrender of physical custody of children to father.
- Contention of father in suit by divorced wife for failure to pay alimony that she had abandoned the children by surrendering physical custody of children to him cannot be sustained, for reason that mother did not have custodial possession of children by reason of parental relation, but by reason of court decree. Swain v. Wells, 210 Ga. 394, 80 S.E.2d 321 (1954).
Mother relinquished her right to custody of her children by allowing paternal grandparents to have physical custody of the children over a period of several years and by failing during that period of time to provide necessary support for the children. Tyner v. Tyner, 170 Ga. App. 877, 318 S.E.2d 675 (1984).
When consent to adoption does not constitute abandonment.
- Parents' consent to adoption of their child by third parties and delivery of child to the parties who keep, maintain, and support child without aid or assistance from natural parents, did not constitute abandonment of child within meaning of paragraph (b)(3) when, prior to final order of adoption, parents withdrew consent to adoption and reasserted rights to custody as natural parents. Wheeler v. Howard, 212 Ga. 553, 93 S.E.2d 723 (1956).
Long separation from child and remarriage constituted abandonment.
- When record shows separation of mother from father and child for a long period of years, and a divorce proceeding in which custody of child was given to father by voluntary action of mother, she stating that she could not control him, and her subsequent remarriage, this amounted to a forfeiture or abandonment of the child, and the father had right to give custody of child to third party. Raily v. Smith, 202 Ga. 185, 42 S.E.2d 491 (1947).
Failure to visit child.
- Although the parent's failure to exercise in-person visitation with the children had occurred in the months preceding the final hearing, the grandparents offered no evidence to show that the failure caused the children any type of emotional harm; nor did the missed visits serve to demonstrate that the children would suffer harm if custody were returned to the parent. While the trial court found that the missed visits and the parent's failure to take responsibility for the missed visits did not bode well for the parent's willingness to properly care for and protect the children, O.C.G.A. § 19-7-1 did not allow a trial court to engage in that kind of speculation with respect to future harm. Mashburn v. Mashburn, 353 Ga. App. 31, 836 S.E.2d 131 (2019).
Failure to provide support for minor in another's custody.
- Mere failure of parent to provide support for minor child when in possession or custody of other parent, a grandparent, or other person, when no support is requested or needed, is not such failure to provide necessaries or such abandonment as will amount to relinquishment of the right to parental custody and control. Rawdin v. Conner, 210 Ga. 508, 81 S.E.2d 461 (1954); McMillan v. McMillan, 224 Ga. 790, 164 S.E.2d 839 (1968); Shaddrix v. Womack, 231 Ga. 628, 203 S.E.2d 225 (1974); Howell v. Gossett, 234 Ga. 145, 214 S.E.2d 882 (1975).
Right to recover for death of child by non-involved parent.- When a father and daughter died in the same car accident and the father had sole custody of the daughter at the time of her death, and no court ever required the mother to pay child support, even if the mother did not provide support for her daughter, her failure did not result in the loss of her parental rights and the mother had the right to recover for the wrongful death of her daughter. Jahn v. Wilson Freight Lines, 793 F. Supp. 1083 (M.D. Ga. 1992), aff'd, 12 F.3d 219 (11th Cir. 1993).
Proceeds of Child's Labor
Case law establishing action for loss of minor's services.
- While case law in Georgia allows a cause of action for the parent's recovery for the loss of services of a minor child when such loss is caused by a negligent act, this is also reinforced by O.C.G.A. § 19-7-1(a), which provides that, until the age of majority, the child shall be under the control of the parents, "who are entitled to his services and the proceeds of his labor." Ireland Elec. Corp. v. Georgia Hwy. Express, Inc., 166 Ga. App. 150, 303 S.E.2d 497 (1983).
Presumption that parent is entitled to child's earnings must be overcome by proof of manumission. Evans v. Caldwell, 52 Ga. App. 475, 184 S.E. 440 (1936), aff'd, 184 Ga. 203, 190 S.E. 582 (1937).
Allowing child to receive proceeds of own labor amounts to emancipation. Coleman v. Dublin Coca-Cola Bottling Co., 47 Ga. App. 369, 170 S.E. 549 (1933); Evans v. Caldwell, 52 Ga. App. 475, 184 S.E. 440 (1936), aff'd, 184 Ga. 203, 190 S.E. 582 (1937).
Working minor not necessarily manumitted.
- Even when a parent should allow a child to engage in a particular employment and retain for the child the wages for the child's services rendered while so engaged, it by no means follows that the minor has been manumitted for the whole period of the minor's minority. Hunt v. State, 8 Ga. App. 374, 69 S.E. 42 (1910).
When emancipation may be only temporary and subject to revocation.
- Emancipation may be only temporary by parent's express or implied consent, which consent may be revoked at any time for a particular employment, in which event it does not follow that the minor has been manumitted by the parent for the whole period of the minor's minority. Evans v. Caldwell, 52 Ga. App. 475, 184 S.E. 440 (1936), aff'd, 184 Ga. 203, 190 S.E. 582 (1937).
Parental consent may be express or implied.
- Parent's consent to child's receipt of proceeds of own labor may be express or implied. Baldwin v. Davis, 188 Ga. 587, 4 S.E.2d 458 (1939).
Proof of parental consent.
- Minor may prove conversations with mother relative to minor's receiving proceeds of own labor. Coleman v. Dublin Coca-Cola Bottling Co., 47 Ga. App. 369, 170 S.E. 549 (1933).
Minor's assignment of wages to third person.
- Minor cannot defeat parent's right to minor's wages by assigning those wages to a third person. Southern Ry. v. King Bros. & Co., 136 Ga. 173, 70 S.E. 1109 (1911).
Employer's burden of showing advances to minor were for necessaries.
- Unless parental power has been lost or relinquished, a parent is entitled to value of services of the minor child, whether the contract for services is made by a parent or by the minor; and even as to advances or payments made by an employer to a minor for necessaries, the burden is upon the employer to show that such were really necessary. Royal v. Grant, 5 Ga. App. 643, 63 S.E. 708 (1909).
Levy upon child's earnings.
- Earnings which child is allowed to retain cannot be levied on as property of parent. Ehrlich & Co. v. King, 34 Ga. App. 787, 131 S.E. 524 (1926).
Parent loses right to proceeds of child's labor by abandonment. Southern Ry. v. Flemister, 120 Ga. 524, 48 S.E. 160 (1904); Newton v. Cooper, 13 Ga. App. 458, 79 S.E. 356 (1913).
Child who marries assumes inconsistent responsibilities which entitle the child to proceeds of own labor, and the child's parent is under no legal obligation to support the child. Thompson v. Georgia Ry. & Power Co., 163 Ga. 598, 136 S.E. 895 (1927).
Unfitness of Parent
Determination of unfitness must be based on parent's present condition. Bozeman v. Williams, 248 Ga. 606, 285 S.E.2d 9 (1981).
Evidence adduced to prove parental unfitness must pertain to present rather than past misconduct. In re M.M.A., 166 Ga. App. 620, 305 S.E.2d 139 (1983).
Method of depriving natural parent of child custody other than those enumerated in this statute was upon clear and satisfactory showing that parent was an unfit person to have such custody. Patman v. Patman, 231 Ga. 657, 203 S.E.2d 486 (1974).
Legal and parental right to custody is subject to challenge on ground of unfitness for trust. Peck v. Shierling, 222 Ga. 60, 148 S.E.2d 491 (1966), later appeal, 223 Ga. 1, 152 S.E.2d 868 (1967).
Finding of unfitness must be supported by clear and convincing evidence. Mathis v. Nicholson, 244 Ga. 106, 259 S.E.2d 55 (1979); Bozeman v. Williams, 248 Ga. 606, 285 S.E.2d 9 (1981); In re M.M.A., 166 Ga. App. 620, 305 S.E.2d 139 (1983).
Challenge to fitness must be by clear and satisfactory proofs, and for grave and substantial cause. Perkins v. Courson, 219 Ga. 611, 135 S.E.2d 388 (1964); Peck v. Shierling, 222 Ga. 60, 148 S.E.2d 491 (1966), later appeal, 223 Ga. 1, 152 S.E.2d 868 (1967).
Proof required to sustain challenge to parent's fitness.
- Parent's prima facie right of custody of infant, when resisted upon ground of unfitness or other cause, must be established by clear and satisfactory proof. Hill v. Rivers, 200 Ga. 354, 37 S.E.2d 386 (1946).
Right to custody may be lost on ground of unfitness only if it is shown by clear and satisfactory proof that circumstances of case justify court in acting for best interest and welfare of child. Bowman v. Bowman, 234 Ga. 348, 216 S.E.2d 103 (1975).
Clear and convincing evidence standard when third-party relative involved.
- After the trial court granted custody of the child to the maternal grandparents, the trial court did not need to make a determination that the father was unfit to care for the child when applying O.C.G.A. § 19-7-1; rather, the court was required to determine that the third-party relative had 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. Braddock v. Lindsey, Ga. App. , 845 S.E.2d 731 (2020).
Unfitness justifies court in acting for child's best interest.
- Parent may lose right to custody if found to be unfit. Unfitness of parent should be shown by clear and convincing evidence that circumstances of case justify court in acting for best interest and welfare of child. White v. Bryan, 236 Ga. 349, 223 S.E.2d 710 (1976); Childs v. Childs, 237 Ga. 177, 227 S.E.2d 49 (1976), later appeal, 239 Ga. 304, 236 S.E.2d 646 (1977).
That child might have better financial, educational, or moral advantages elsewhere is insufficient. Peck v. Shierling, 222 Ga. 60, 148 S.E.2d 491 (1966), later appeal, 223 Ga. 1, 152 S.E.2d 868 (1967).
Parental fitness.
- Fitness was not necessarily synonymous with absence of conduct penalized by former Code 1933, §§ 74-108-74-110 (see now O.C.G.A. §§ 19-7-1 and19-7-4). Fact that parent had not forfeited or relinquished parental right by any of the modes of these sections did not establish parent as fit. Perkins v. Courson, 219 Ga. 611, 135 S.E.2d 388 (1964).
When appellate court will not upset finding that parent is unfit.
- When controlling issue was whether or not the petitioners lost the right of parental power and control, evidence was in sharp conflict, and the trial judge resolved that conflict against the parent petitioners and awarded custody of the child to the respondent, the appellate court would not say that judge of the court below abused the judge's discretion. Byers v. Loftis, 208 Ga. 398, 67 S.E.2d 118 (1951).
When evidence amply authorizes, although it does not demand, finding that parent is not a fit and proper person to have custody of children and that it is in best interests and welfare of children that they be awarded to other person, appellate court will not substitute the court's judgment for that of trial judge, absent abuse of legal discretion. Adams v. Kirkland, 218 Ga. 512, 128 S.E.2d 730 (1962).
When the trial court makes a finding of parental unfitness, the appellate courts will ordinarily not interfere with that finding, absent an abuse of discretion. In re M.M.A., 166 Ga. App. 620, 305 S.E.2d 139 (1983).
Emancipation of Minor
There are several ways for a minor to become emancipated. First, marriage emancipates. Additionally, emancipation may be shown by one of the grounds set out in O.C.G.A. § 19-7-1. Street v. Cobb County Sch. Dist., 520 F. Supp. 1170 (N.D. Ga. 1981).
Unemancipated minors are subject to power of parent or guardian, but emancipated minors are not. Street v. Cobb County Sch. Dist., 520 F. Supp. 1170 (N.D. Ga. 1981).
Custody
1. In General
Clear and strong case must exist to justify disturbing natural ties between parent and child. Woods v. Martin, 212 Ga. 405, 93 S.E.2d 339 (1956).
Probate letters of guardianship did not impact jurisdiction.
- Paternal grandmother's letters of temporary guardianship that were issued by a probate court did not foreclose a maternal grandmother's filing of a petition for permanent custody, and did not serve as a tool to dismiss the ongoing custody proceeding; the letters had no impact on the trial court's jurisdiction to entertain the custody petition. Barfield v. Butterworth, 323 Ga. App. 156, 746 S.E.2d 819 (2013).
Circumstances under which court may sever parent-child custodial relationship.
- Only under compelling circumstances, established by clear and convincing proof, may court sever parent-child custodial relationship. Carvalho v. Lewis, 247 Ga. 94, 274 S.E.2d 471 (1981); Blackburn v. Blackburn, 249 Ga. 689, 292 S.E.2d 821 (1982).
Parent was entitled to custody and control of children until majority unless such power was forfeited as prescribed by statute. Gaskins v. Beasley, 216 Ga. 19, 114 S.E.2d 373 (1960).
Abandonment is a statutory ground for forfeiture of parental right to custody and control of minor child. Miele v. Gregory, 248 Ga. 93, 281 S.E.2d 565 (1981).
Parental right to custody subservient to child's safety.
- Legal right of parent to custody of child is subservient to child's interest or safety, and to duty of state to protect the state's citizens of whatever age. Hill v. Rivers, 200 Ga. 354, 37 S.E.2d 386 (1946).
Forfeiture of parental rights not prerequisite to change of custody award.
- In order to change award of custody, trial court does not necessarily have to find that legal custodian has forfeited parental rights under former Code 1933, §§ 74-108 - 74-110 (see now O.C.G.A. § 19-7-1 or O.C.G.A. § 19-7-4), but must find either that the original custodian was no longer able or suited to retain custody, or that the conditions and the circumstances surrounding the child have so changed that the child's welfare would be enhanced by modifying the original judgment. Bell v. Bell, 154 Ga. App. 290, 267 S.E.2d 894 (1980).
To change award of custody does not require finding that legal custodian has forfeited parental rights under former Code 1933, §§ 74-108 - 74-110 (see now O.C.G.A. § 19-7-1 or O.C.G.A. § 19-7-4). Dearman v. Rhoden, 235 Ga. 457, 219 S.E.2d 704 (1975).
When parent may lose right to custody.
- Parent may lose right to custody only if one of the conditions specified in former Code 1933, §§ 74-108-74-110 (see now O.C.G.A. § 19-7-1 or O.C.G.A. § 19-7-4) was found to exist, or, in exceptional cases, if the parent was found to be unfit. Byers v. Loftis, 208 Ga. 398, 67 S.E.2d 118 (1951); Bowman v. Bowman, 234 Ga. 348, 216 S.E.2d 103 (1975); Childs v. Childs, 237 Ga. 177, 227 S.E.2d 49 (1976), later appeal, 239 Ga. 304, 236 S.E.2d 646 (1977); Mathis v. Nicholson, 244 Ga. 106, 259 S.E.2d 55 (1979); Larson v. Gambrell, 157 Ga. App. 193, 276 S.E.2d 686 (1981).
Parental right to custody may be lost in habeas proceeding if one of conditions specified in O.C.G.A. § 19-7-1 or O.C.G.A. § 19-7-4 is found to exist, or if parent is found to be unfit. Miele v. Gregory, 248 Ga. 93, 281 S.E.2d 565 (1981).
Right to custody may be lost by voluntary contract.
- Right to custody may be lost under O.C.G.A. § 19-7-1 if the parent has forfeited his or her right to parental powers by releasing this right to a third person by voluntary contract. This voluntary contractual release of custody must be clear, definite, and unambiguous. Bozeman v. Williams, 248 Ga. 606, 285 S.E.2d 9 (1981).
Voluntary consent to adoption and subsequent failure to provide necessaries forfeits right of custody. Sessions v. Oliver, 204 Ga. 425, 50 S.E.2d 54 (1948).
When parent must be made party to proceeding.
- Parent must be made party to proceeding to remove parent as natural guardian of child, and parent must be served with notice, otherwise the proceeding is void as depriving the parent of parental control without due process of law, and after the parent has been removed and there is no longer a natural guardian, the judge of probate court's jurisdiction to appoint arises. Whitlock v. Barrett, 158 Ga. App. 100, 279 S.E.2d 244 (1981).
Effect of legitimation upon parent's standing as to custody.
- Upon legitimation, father stands in same position as any other parent as to custody being subject to challenge for good and legal cause. Sims v. Pope, 228 Ga. 289, 185 S.E.2d 80 (1971).
Child's legitimization does not immunize father from challenges to custody.
- Legitimization of child does not ipso facto immunize father from challenges to custody upon proper showing that children should be removed from his custody. Sims v. Pope, 228 Ga. 289, 185 S.E.2d 80 (1971).
Person to whom parent relinquishes child, if suitable to have custody, is entitled thereto. Saxon v. Brantley, 174 Ga. 641, 163 S.E. 504 (1932).
Evidence of past unfitness, standing alone, is insufficient to terminate the rights of a parent in his natural child; clear and convincing evidence of present unfitness is required. Blackburn v. Blackburn, 249 Ga. 689, 292 S.E.2d 821 (1982).
Review of custody award in divorce action.
- On appeal in an action for divorce, the court will affirm the award of custody if there exists "any evidence" in the record to support the trial court's decision. Blackburn v. Blackburn, 249 Ga. 689, 292 S.E.2d 821 (1982).
On review of an award of custody to a third party, the reviewing court is to defer to the lower court in the area of factfinding and should affirm unless the "rational factfinder" test of Blackburn v. Blackburn, 249 Ga. 689, 292 S.E.2d 821 (1982) is not met. In re B.D.C., 256 Ga. 511, 350 S.E.2d 444 (1986); In re S.H., 181 Ga. App. 438, 352 S.E.2d 621 (1987).
Review of award to third party.
- On review, the award of custody to a third party will be affirmed only if there is "reasonable evidence" to support the award. Blackburn v. Blackburn, 249 Ga. 689, 292 S.E.2d 821 (1982).
Custody dispute if neither relative is a parent.
- O.C.G.A. § 19-7-1(b.1) did not apply in a custody dispute between a grandmother and an uncle of the child. Stills v. Johnson, 272 Ga. 645, 533 S.E.2d 695 (2000).
Voluntary release of parental power.
- In a custody dispute between the paternal grandmother and the maternal uncle of a child, where neither relative is a parent as defined by Georgia law, and the child's parent has transferred "parental power" to the grandmother pursuant to O.C.G.A. § 19-7-1(b)(1), custody is to be governed by the standard of best interest of the child. Stills v. Johnson, 272 Ga. 645, 533 S.E.2d 695 (2000).
2. Custody Rights as Between Parents
When court may determine which parent is more suitable.
- Only in custody disputes between parents may court determine which party is more suitable to be awarded custody, this being the so-called "best interest of child" test. Carvalho v. Lewis, 247 Ga. 94, 274 S.E.2d 471 (1981).
In dispute between two "fit" parents, child's best interests control.
- When case involves two "fit" parents, the law contemplates that child be awarded to parent in whose custody the child's best interests will be served. Larson v. Gambrell, 157 Ga. App. 193, 276 S.E.2d 686 (1981).
Upon forfeiture by mother of prima facie right of custody, such right inures to father. Hill v. Rivers, 200 Ga. 354, 37 S.E.2d 386 (1946).
Father's forfeiture of custody vests custody in mother.
- Upon forfeiture of custody by father, who had been awarded custody by divorce decree, prima facie right of custody automatically and immediately vests in mother. Sessions v. Oliver, 204 Ga. 425, 50 S.E.2d 54 (1948).
Forfeiture of custody by parent's actions.
- Right of custody pursuant to divorce decree may be forfeited by parent's actions subsequent to rendition of decree. Sessions v. Oliver, 204 Ga. 425, 50 S.E.2d 54 (1948).
When parent having custody dies.
- On death of parent having custody of child under divorce decree, right to custody automatically inures to surviving parent. Raily v. Smith, 202 Ga. 185, 42 S.E.2d 491 (1947).
When parent having custody dies, legal custody reverts to other parent unless the other parent had lost parental rights as provided under former Code 1933, § 74-108, or was shown to be presently unfit. Porter v. Johnson, 242 Ga. 188, 249 S.E.2d 608 (1978).
Custody rights of stepparent.
- In suit by father for custody of child against child's stepfather, the mother having died, prima facie right to custody is in father, and should not be overturned absent strong case as to welfare of child so as to authorize award of child to stepfather. Chapin v. Cummings, 191 Ga. 408, 12 S.E.2d 312 (1940).
On death of parent having custody of child under divorce decree, right to custody automatically inures to surviving parent. Raily v. Smith, 202 Ga. 185, 42 S.E.2d 491 (1947).
When parent having custody dies, legal custody reverts to other parent unless the other parent had lost parental rights as provided under former Code 1933, § 74-108, or was shown to be presently unfit. Porter v. Johnson, 242 Ga. 188, 249 S.E.2d 608 (1978).
Upon death of mother having lawful custody, prima facie right of custody inures to father. In such circumstances, the father's right to custody could only be lost upon one of the grounds enumerated in former Code 1933, §§ 74-108 - 74-110 (see now O.C.G.A. § 19-7-1 or O.C.G.A. § 19-7-4). Hill v. Rivers, 200 Ga. 354, 37 S.E.2d 386 (1946); Baynes v. Cowart, 209 Ga. 376, 72 S.E.2d 716 (1952); Hale v. Henderson, 210 Ga. 273, 79 S.E.2d 804 (1954); Jackson v. Dunn, 158 Ga. App. 194, 279 S.E.2d 514 (1981).
Surviving parent is prima facie entitled to custody of his or her child. Miele v. Gregory, 248 Ga. 93, 281 S.E.2d 565 (1981).
Abandonment must be shown by more than a preponderance of the evidence. When mother of child is dead, father has prima facie right of custody, and in order to sustain contention that he has lost parental power by reason of failure to provide necessaries for his child or by abandonment of his family, a clear and strong case must be made. Miele v. Gregory, 248 Ga. 93, 281 S.E.2d 565 (1981).
Adopting parent on equal footing as biological.
- Reading O.C.G.A. § 19-7-1(b.1) in pari materia with the Georgia statutes granting adoptive parents rights and obligations equal to those of a biological parent, the Supreme Court of Georgia concludes that for a court to award custody to an adoptive parent over a biological parent, only the statutory showing is required. Hastings v. Hastings, 291 Ga. 782, 732 S.E.2d 272 (2012).
3. Custody Rights as Between Parents and Third Parties
Findings required.
- Trial court's order awarding custody of a child to the maternal grandmother apparently based on the best interests of the child and unfitness of the mother was remanded because the order did not contain findings to substantiate these potentially conflicting conclusions of law. Grantham v. Grantham, 269 Ga. 413, 499 S.E.2d 67 (1998).
Appellate court reversed the trial court's judgment awarding custody of a father's daughters to the daughters' grandmother because the trial court did not find that awarding custody to the father, who legitimized his daughters after he learned that their mother had died, would harm the children physically or emotionally. Jones v. Burks, 267 Ga. App. 390, 599 S.E.2d 322 (2004).
Burden of proof of grandparents seeking termination.
- In a mother's petition to terminate her parents' temporary guardianship over her child under O.C.G.A. § 15-11-14, the trial court erred in failing to consider whether the grandparents proved by clear and convincing evidence that termination would cause the child physical or long-term emotional harm; therefore, remand was required for further consideration. In the Interest of K. M., 344 Ga. App. 838, 811 S.E.2d 505 (2018).
Paternal grandparents could petition for custody despite child not being legitimated.
- Even though the father had not legitimated the child, the trial court erred in concluding that the paternal grandparents lacked standing to petition for custody of the child because the grandparents' right to bring an action was controlled by their showing that their son was a parent of the child, not by legitimating the child. Hannah v. Hatcher, 352 Ga. App. 186, 834 S.E.2d 307 (2019).
When right to custody cannot be legally challenged by third persons.
- Unless parental control has been lost by one or more of the ways prescribed by statute, parent's prima facie right to custody and control of minor child as against claims of third persons was not subject to legal challenge. Waldrup v. Crane, 203 Ga. 388, 46 S.E.2d 919 (1948); Woods v. Martin, 212 Ga. 405, 93 S.E.2d 339 (1956); Mills v. Mills, 218 Ga. 686, 130 S.E.2d 221 (1963).
O.C.G.A. § 19-7-1(b.1) is constitutional as applied to custody disputes between a noncustodial parent and a third party, and the best interest standard means that the third party has to prove by clear and convincing evidence that the child would suffer physical or emotional harm if custody were awarded to the biological parent, and once the showing is made, the third party has to show that a custody award to the third party would promote the child's welfare and happiness. Clark v. Wade, 273 Ga. 587, 544 S.E.2d 99 (2001).
As between natural parents and strangers, prima facie right to custody is in parents. Rodale v. Grimes, 211 Ga. 674, 87 S.E.2d 857 (1955).
Parent should not be deprived of custody absent strong evidence indicating child's welfare demands it; but on the other hand, child should not be arbitrarily required to remain under intolerable custody and control of unfit person, even the father. Harper v. Ballensinger, 121 Ga. App. 390, 174 S.E.2d 182, rev'd in part on other grounds, 226 Ga. 828, 177 S.E.2d 693 (1970).
Natural parent prevails over third party unless parent has lost parental rights or is unfit.
- In contest between parent and third party over custody of child, unless parental control has been lost, parent has prima facie right of custody. Dornburg v. McKellar, 204 Ga. 189, 48 S.E.2d 820 (1948); West v. West, 228 Ga. 397, 185 S.E.2d 763 (1971).
Mother within definition of former Code 1933, § 74-203 (see now O.C.G.A. § 19-7-25) cannot be denied custody of child at habeas corpus proceeding against third parties unless it was shown that parental power was lost under provisions of former Code 1933, §§ 74-108 - 74-110 (see now O.C.G.A. § 19-7-1 or O.C.G.A. § 19-7-4), or that the parent was shown to be unfit. Pettiford v. Mott, 230 Ga. 692, 198 S.E.2d 662 (1973).
In dispute between natural parent and third party, court must award custody of child to parent unless parent has lost parental prerogatives or was unfit. Drummond v. Fulton County Dep't of Family & Children's Servs., 547 F.2d 835 (5th Cir. 1977), rev'd on other grounds en banc, 563 F.2d 1200 (5th Cir. 1977), cert. denied, 437 U.S. 910, 98 S. Ct. 3103, 57 L. Ed. 2d 1141 (1978).
In contest between parent and third party over custody of child, parent may lose the right to custody only if one of the conditions specified in O.C.G.A. § 19-7-1 or O.C.G.A. § 19-7-4 is found to exist, or, in exceptional cases, if parent is found to be unfit. Bozeman v. Williams, 248 Ga. 606, 285 S.E.2d 9 (1981).
As between natural parent and third party (grandparent), parent can be deprived of custody only if one of the conditions specified in O.C.G.A. § 19-7-1 or O.C.G.A. § 19-7-4 or one of the other legal grounds (O.C.G.A. §§ 15-11-2(8) and15-11-81) is found to exist by clear and convincing evidence. Brant v. Bazemore, 159 Ga. App. 659, 284 S.E.2d 674 (1981).
For a third party to prevail in obtaining custody in a contest with the surviving parent, clear and convincing evidence that the parent has lost the right to parental custody and control by abandonment or some other legal ground must be presented. In re S.H., 181 Ga. App. 438, 352 S.E.2d 621 (1987).
When a third party sues the custodial parent to obtain custody of a child and to terminate the parent's custodial rights to the child, the parent is entitled to custody of the child unless the third party shows by "clear and convincing evidence" that the parent is unfit or otherwise not entitled to custody under O.C.G.A. §§ 19-7-1 and19-7-4. Heath v. McGuire, 167 Ga. App. 489, 306 S.E.2d 741 (1983); In re C.T.L., 182 Ga. App. 845, 357 S.E.2d 298 (1987); Larson v. Larson, 192 Ga. App. 163, 384 S.E.2d 193 (1989).
Grandparents failed to demonstrate by clear and convincing evidence that an award of custody to the grandparents would be in the child's best interests because the trial court found that the mother was a fit parent and that if custody were returned to the mother, the child would not suffer either physical harm or significant, long-term emotional harm, which was not contradicted by the grandparents. Morgan v. Morgan, 349 Ga. App. 886, 827 S.E.2d 73 (2019), cert. denied, No. S19C1175, 2019 Ga. LEXIS 864 (Ga. 2019).
Presumption of parental custody does not apply when parent is found unfit.
- Although O.C.G.A. § 19-7-1(b.1) establishes a rebuttable presumption that parental custody is always in the child's best interest, thus favoring the biological parent over a third party, the presumption does not apply in favor of a parent who has already been found to be unfit by the juvenile court. In re J. N., 302 Ga. App. 631, 691 S.E.2d 396 (2010).
Dispute between parent and third party.
- In custody dispute between parent and third party, trial court must first make determination as to whether parent has lost his or her rights under O.C.G.A. § 19-7-1 or that parent is unfit pursuant to case law. Carvalho v. Lewis, 247 Ga. 94, 274 S.E.2d 471 (1981).
Since a previous visitation order related to the grandparent's right to visitation, not custody, and the legal issues to be decided varied, the trial court properly determined that res judicata did not bar the grandparents' petition for custody under the Uniform Child Jurisdiction and Custody Act, O.C.G.A. § 19-9-40 et seq.; the Act does not provide that the judgment is conclusive as to all issues which could have been put in issue. Scott v. Scott, 311 Ga. App. 726, 716 S.E.2d 809 (2011).
In a Georgia action to modify an Alaska child custody determination, which was entered pursuant to an agreement of the parties, the Georgia trial court did not apply the correct best interest of the child standard of proof under O.C.G.A. § 19-7-1(b.1), and instead erroneously placed the Durden standard of proof on the mother. The Durden standard did not apply because there had not been a permanent award of custody to a third party made pursuant to an evidentiary hearing with specific findings by clear and convincing evidence of present parental unfitness. Lopez v. Olson, 314 Ga. App. 533, 724 S.E.2d 837 (2012).
Although implicit in the trial court's order is a finding that the children would suffer harm in the custody of the father, it was not apparent whether the trial court made the requisite determination that the children would suffer either physical harm or significant, long-term emotional harm as required and it was also unclear whether the trial court considered the four factors set forth in Clark v. Wade, 273 Ga. 587 (2001) with regard to custody determinations in cases in which certain third-party relatives seek custody from parents. Floyd v. Gibson, 331 Ga. App. 301, 771 S.E.2d 12 (2015).
Trial court erred by granting custody of the mother's daughter to the mother's former boyfriend, because the mother did not permanently surrender the mother's parental power or custody rights in a prior consent order which gave the boyfriend joint custody with visitation. Baskin v. Hale, 337 Ga. App. 420, 787 S.E.2d 785 (2016), cert. denied, No. S16C1762, 2017 Ga. LEXIS 12 (Ga. 2017).
Failure to rebut presumption of granting custody to parent.
- Juvenile court erred in granting custody to the maternal grandmother without finding that she overcame the presumption in favor of granting custody to the father or that the child's best interests would be better served by awarding custody to her. In the Interest of J. G., 350 Ga. App. 588, 829 S.E.2d 828 (2019).
Custody dispute following murder of one parent by other parent.
- Trial court erroneously concluded that grandparents' petition seeking custody of a mother's children failed to state a claim because the custody petition gave fair notice that the grandparents sought custody of the child under O.C.G.A. §§ 19-7-1(b.1) and19-9-2 based upon the mother's alleged murder of the father; those allegations were sufficient to survive a motion to dismiss. Scott v. Scott, 311 Ga. App. 726, 716 S.E.2d 809 (2011).
Failure to award custody to father.
- Type of harm noted by the trial court, removal from the home where the child resided for a majority of the child's life, fell within that level of stress and discomfort that was an acceptable price for reuniting a child with a parent, and was insufficient to infringe the fiercely guarded right of a parent to have legal and physical custody of their child and, thus, the trial court erred in failing to award custody to the father. Bell v. Taylor, 334 Ga. App. 267, 779 S.E.2d 42 (2015).
Award of joint custody to third party.
- Georgia law does not preclude an award of joint custody to a third party by the trial court upon the consent of the parent to such an arrangement or upon a waiver by such parent of constitutionally protected parental rights, provided that the trial court determines that the award is in the best interest of the child. Weiss v. Varnadore, 246 Ga. App. 654, 541 S.E.2d 448 (2000).
Trial court erred in granting joint custody of the child to the grandparents because the trial court was not authorized to conclude that the grandparents had demonstrated by clear and convincing evidence that an award of custody to the mother would cause either physical harm or significant, long-term emotional harm to the child as the professional counselor offered no evidence that such harm would occur or that the mother was an unfit parent. Jewell v. McGinnis, 346 Ga. App. 733, 816 S.E.2d 683 (2018), cert. denied, No. S18C1547, 2019 Ga. LEXIS 168 (Ga. 2019).
Awarding custody to grandparent.
- Because the trial court applied the correct legal standard in O.C.G.A. § 19-7-1(b.1) in finding that the natural parent presumption was rebutted and that awarding custody to the grandparents was in the child's best interests, and because the grandparents were properly permitted to intervene under O.C.G.A. § 9-11-24(a)(2), the mother was not entitled to appellate relief. Trotter v. Ayres, 315 Ga. App. 7, 726 S.E.2d 424 (2012), cert. denied, No. S12C1206, 2012 Ga. LEXIS 666 (Ga. 2012).
Award of custody to the grandmother was supported by sufficient evidence showing that the grandmother and the grandmother's husband were the caregivers the child had the most significant and stable relationship with and the grandparents were best able to meet the child's needs for support, stability, consistency, and parenting. Reder v. Dodds, 354 Ga. App. 598, 839 S.E.2d 708 (2020).
Placement with grandparents not proper.
- In an action by the grandparents against the mother for custody of the child, the trial court erred in finding that the evidence supported a finding that awarding the mother custody would cause significant, long-term emotional harm to the child because one speeding ticket and the mother's decision to discipline the child were not harmful absent additional evidence, the mother's failure to make every child-support payment or visitation scheduled when the father was alive did not lead to the conclusion the child was deprived, and the mother's questionable relationships did not harm the child. Fyffe v. Cain, 353 Ga. App. 130, 836 S.E.2d 602 (2019).
Because the temporary order granting the grandmother physical custody of the child was made without findings of fact or law to support it, failing to find that the mother was unfit, that the child would suffer physical harm or significant long-term emotional harm, or the custody award was in the child's best interest, the order was not sufficient to permit meaningful appellate review. Steedley v. Gilbreth, 352 Ga. App. 179, 834 S.E.2d 301 (2019).
First question is whether parental control lost.
- In contest between parent and third party over custody of minor child, first question to be determined is whether or not parental control has been lost. Morris v. Grant, 196 Ga. 692, 27 S.E.2d 295 (1943); Dornberg v. McKellar, 204 Ga. 289, 48 S.E.2d 820 (1948); Byers v. Loftis, 208 Ga. 398, 67 S.E.2d 118 (1951); Morrison v. Morrison, 212 Ga. 48, 90 S.E.2d 402 (1955); West v. West, 228 Ga. 397, 185 S.E.2d 763 (1971).
Differing standards in visitation and custody issues.
- Trial court properly determined that collateral estoppel did not bar the grandparents' petition for custody of a mother's children because different issues were actually and necessarily decided in the grandparents' visitation action; in the visitation action, the issues were harm to the child if visitation was not granted and whether visitation would be in the best interest of the children, and in the custody action, the issues were whether the children would suffer physical or emotional harm if custody remained with the mother. Scott v. Scott, 311 Ga. App. 726, 716 S.E.2d 809 (2011).
Standard is child's best interest when deciding between grandparents.
- Maternal grandmother's petition for custody over a child, which also involved the paternal grandmother due to her intervention in the matter after securing letters of temporary guardianship, involved a determination as to what was in the child's best interest. Barfield v. Butterworth, 323 Ga. App. 156, 746 S.E.2d 819 (2013).
Legal father without custody rights.
- Because the juvenile court erred in the court's application of O.C.G.A. § 19-7-1(b.1), as a child's legal father was not one of the limited number of related third parties who could seek custody from a legal parent, and in light of the superior court's grant of a legitimation petition to the child's biological father, which the legal father did not challenge by way of an appeal, the legal father lacked standing to challenge the biological father's custody under present Georgia law, and therefore no longer had rights to the custody of the child. In the Interest of C.L., 284 Ga. App. 674, 644 S.E.2d 530 (2007).
Natural parents will be awarded custody unless present unfitness is established by clear and convincing evidence at hearing on permanent custody. Only then is trial court authorized to consider award of custody to third parties. Childs v. Childs, 237 Ga. 177, 227 S.E.2d 49 (1976), later appeal, 239 Ga. 304, 236 S.E.2d 646 (1977).
When surviving parent sues to obtain custody of his or her minor child from third party who has physical, but not legal, custody of child, parent is entitled to custody unless it is shown by clear and convincing evidence that parent has lost parent's right to parental custody and control by abandonment of child or other legal ground. Miele v. Gregory, 248 Ga. 93, 281 S.E.2d 565 (1981).
When duty and control is lost or alienated to a third person by any of the means recognized by law, then such third person stands in loco parentis to the child, and parental power remains in the third party until the child reaches majority, unless the third party loses or forfeits the right to custody or becomes unfit for retaining custody. In re M.A.F., 254 Ga. 748, 334 S.E.2d 668 (1985).
Presumption that it is in child's best interest to be with parent.
- While in child custody case welfare of child is always the law's paramount concern, the law presumes that it is in child's best interest to be with his parent if parent is not unfit to be child's custodian. Larson v. Gambrell, 157 Ga. App. 193, 276 S.E.2d 686 (1981).
When presumption must be rebutted.
- Before custody of child may be awarded to third party, presumption that it will be in child's best interest to be with parent must be rebutted by clear and convincing evidence showing that parent is unfit to be awarded custody. Larson v. Gambrell, 157 Ga. App. 193, 276 S.E.2d 686 (1981).
When contemplating taking custody of a minor child from the child's parent or parents and awarding custody to a third party, the court must initially face the presumption, firmly embedded in the law, that it is in the child's best interest to be with the child's natural parent or parents. In order for this presumption to be overcome, there must be a clear and convincing showing that the child is abandoned, deprived, or abused, or that the parent is unfit to receive or retain custody. In re M.M.A., 166 Ga. App. 620, 305 S.E.2d 139 (1983).
Discretion exercised in favor of party having legal right.
- Discretion vested in trial judge with respect to award of custody of minor children ought to be exercised in favor of party having legal right, unless circumstances of case and precedents established would justify court, acting for welfare of child, in refusing it. Lucas v. Smith, 201 Ga. 834, 41 S.E.2d 527 (1947).
Trial court was vested with discretion in determining to whom custody shall be given. Such discretion should be governed by rules of law, and be exercised in favor of party having prima facie legal right to custody of child unless evidence showed that such person had lost right to custody through one of the ways recognized in former Code 1933, §§ 74-108-74-110 (see now O.C.G.A. § 19-7-1 or O.C.G.A. § 19-7-4), or through unfitness. Triplett v. Elder, 234 Ga. 243, 215 S.E.2d 247 (1975).
One with legal right prevails if other factors equal.
- In contest between two parties, both of whom are fit and proper persons, the one having the legal right should prevail. Saxon v. Brantley, 174 Ga. 641, 163 S.E. 504 (1932); Camp v. Bookman, 204 Ga. 670, 51 S.E.2d 391 (1949).
When neither party has legal right, one having strongest moral claims should prevail. Camp v. Bookman, 204 Ga. 670, 51 S.E.2d 391 (1949).
Regardless of parties, welfare of child is controlling factor. Camp v. Bookman, 204 Ga. 670, 51 S.E.2d 391 (1949).
Expert opinion of psychologist weighed in considerations.
- There was a real threat of emotional harm to a child if the child were returned to the mother based on testimony of the guardian ad litem, who conferred with a psychologist; the child would suffer emotional harm if returned to the mother and the child would continue to need psychological treatment until adulthood; the latter prognosis applied even if the child remained with the grandmother, but it was a reasonable inference that the child's need for long term psychological therapy would be even greater if custody were transferred to the mother. Lively v. Bowen, 272 Ga. App. 479, 612 S.E.2d 625 (2005).
Court's discretion when parental rights have been lost.
- While former Code 1933, § 50-121 (see now O.C.G.A. § 9-14-2) stated that court may exercise discretion as to whom custody shall be given, that section can apply only when the parent had lost the right of control and custody. Morris v. Grant, 196 Ga. 692, 27 S.E.2d 295 (1943); Baynes v. Cowart, 209 Ga. 376, 72 S.E.2d 716 (1952); Woods v. Martin, 212 Ga. 405, 93 S.E.2d 339 (1956).
If either parent is a proper and suitable person and has not surrendered his or her parental right of custody, it is an abuse of discretion to award minor child to third parties over claim of such parent. Camp v. Bookman, 204 Ga. 670, 51 S.E.2d 391 (1949).
Trial court is vested with discretion in determining to whom child's custody shall be given. Such discretion should be governed by rules of law, and be exercised in favor of party having prima facie legal right to custody of child unless evidence showed that such person had lost right to custody through one of the ways recognized in former Code 1933, §§ 74-108 - 74-110 (see now O.C.G.A. § 19-7-1 or O.C.G.A. § 19-7-4), or through unfitness. Williams v. Ferrell, 231 Ga. 470, 202 S.E.2d 427 (1973).
No discretion to award custody to stepfather.
- It was error for a trial court to award a child's legal and physical custody to the child's stepfather because: (1) the child's mother was permitted to exercise all parental power over the child since the child's father had not legitimated the child under O.C.G.A. § 19-7-22; (2) the stepfather had not adopted the child; and (3) as a result, the stepfather did not have the same status as any of the nonparents specified in O.C.G.A. § 19-7-1(b.1), leaving the trial court with no discretion to award the child's custody to the stepfather. Phillips v. Phillips, 316 Ga. App. 829, 730 S.E.2d 548 (2012).
Contest between father of illegitimate child and third persons to whom mother relinquished control. See Day v. Hatton, 210 Ga. 749, 83 S.E.2d 6 (1954).
Parent's ability to raise child may not be compared to superior fitness of third person; that ability must be examined in a scrutinous, abstract light. Carvalho v. Lewis, 247 Ga. 94, 274 S.E.2d 471 (1981).
Father's youth and poor work habits.
- Court's finding that the father is too young to care for the children and that he is "somewhat delinquent in his work habits" cannot be said to constitute "grave and substantial cause" for awarding custody to the third party on the ground of unfitness. Bowman v. Bowman, 234 Ga. 348, 216 S.E.2d 103 (1975).
Award of custody to person who had cared for child.
- In habeas corpus proceedings brought by parents, the trial court did not abuse the court's discretion in awarding custody of ten-year-old child to party who had cared for her since age of 11 months without remuneration. Byers v. Loftis, 208 Ga. 398, 67 S.E.2d 118 (1951).
Effect of changed circumstances on award of child custody to third person in habeas proceeding. See Moody v. Pike, 200 Ga. 243, 36 S.E.2d 752 (1946).
Application of best interests standard error in third party suit.
- When a third party sues the natural custodial parent for custody of the child, the trial court errs in applying the "best interests of the child" standard. In such a case, the parent is entitled to custody of the child unless the third party shows by "clear and convincing evidence" that the parent is unfit or otherwise not entitled to custody under O.C.G.A §§ 19-7-1 and19-7-4. In re J.C.P., 167 Ga. App. 572, 307 S.E.2d 1 (1983). But see In re A.W., 240 Ga. App. 259, 523 S.E.2d 88 (1999).
Possibility that a child may receive superior influences or amenities in third-party custody is insufficient to justify taking the child from the child's natural parents. In re M.M.A., 166 Ga. App. 620, 305 S.E.2d 139 (1983).
Effect of awarding permanent custody to third party.
- When a parent was a party to a proceeding in which his or her right to custody was lost and custody was permanently awarded to a third party, the third party, and not the parent, has a prima facie right to custody. Durden v. Barron, 249 Ga. 686, 290 S.E.2d 923 (1982).
When a third party has been awarded permanent custody of a child in a court proceeding to which the parent was a party, the parent may not obtain custody by showing a change of conditions affecting the welfare of the child. Durden v. Barron, 249 Ga. 686, 290 S.E.2d 923 (1982).
Surviving parent who had failed to provide necessaries.
- When the father had both negligently and willfully failed to fulfill his statutory duty to provide "the necessaries" for his minor children but no proceeding to establish abandonment, unfitness, or forfeiture of rights was instituted prior to the mother's death, the statutory provision of O.C.G.A. § 19-9-2, which gives custody to the surviving parent absent a contrary judicial holding based on strong, clear, and convincing evidence, was probably operative at the time of the mother's death, and the father at that time became, and continued to be, the children's legal custodian. Harper v. Landers, 180 Ga. App. 154, 348 S.E.2d 698 (1986).
Opportunity to question guardian ad litem during custody proceeding.
- Trial court erred in depriving one parent and grandparent of the opportunity to question the guardian ad litem regarding the results of an investigation as the burden was theirs to establish that the child would be harmed if returned to the other parent and that it was in the best interest of the child to remain with the grandparent. Thus, the trial court's order deprived them of the opportunity to establish facts in support of their position that the child should remain in the grandparent's custody. Simmons v. Williams, 290 Ga. App. 644, 660 S.E.2d 435 (2008).
Failure to make finding of harm in custody dispute between father and grandparent.
- In a custody dispute between a child's father and grandmother, it was error under O.C.G.A. § 19-7-1(b.1) to award custody to the grandmother without finding that custody in the father would cause physical or long-term emotional harm to the child. The trial court's conclusory statement that in the court's experience, a move from Georgia would be detrimental to the child was insufficient to justify the denial of parental custody. Galtieri v. O'Dell, 295 Ga. App. 797, 673 S.E.2d 300 (2009).
In a custody dispute between a father of three children and the children's maternal grandmother, under O.C.G.A. § 19-7-1(b.1), the grandmother was required to show that the children would suffer physical or emotional harm if custody were awarded to the biological parent, not that the harm "may" result, as found by the trial court. Floyd v. Gibson, 337 Ga. App. 474, 788 S.E.2d 84 (2016).
Placement with grandparents appropriate.
- There was clear and convincing evidence that a child would suffer physical and emotional harm if placed with either biological parent, as required by O.C.G.A. § 19-7-1(b.1), based on the presence of drugs, alcohol, violence, arrests in the home, and the mother's failure to send the child to kindergarten, allowing placement of the child with the child's grandparents. Harris v. Snelgrove, 290 Ga. 181, 718 S.E.2d 300 (2011).
There was clear and convincing evidence to support a conclusion that the children would suffer significant, long-term emotional harm if the father was given custody, including that the children had lived with the maternal grandfather since the parents separated, had a strong bond with the grandfather and their aunt, only interacted sporadically with the father, and harm would occur if the children were uprooted from the only home the children had known since the death of their mother. Brawner v. Miller, 334 Ga. App. 214, 778 S.E.2d 839 (2015).
In a custody dispute between a mother and grandparents, the grandparents demonstrated that a permanent award of custody to the grandparents would be in the children's best interest, O.C.G.A. § 19-7-1(b.1), given the mother's unstable lifestyle and lack of income; the Court of Appeals erred in making the court's own findings and reweighing the evidence. Strickland v. Strickland, 298 Ga. 630, 783 S.E.2d 606 (2016).
Trial court did not err in awarding the grandmother custody of the child and awarding the father visitation because, while there was no evidence that the child would suffer physical harm from an award of custody to the father, there was clear and convincing evidence that the child would suffer significant, long-term emotional harm as multiple witnesses testified to the unusually strong sibling bond between the child and a sister and the emotional damage that would be caused if they were separated, as well as the strong emotional bond between the siblings and the maternal grandmother; and there was evidence that the father acquiesced to the grandmother serving as the day-to-day caregiver of the child for many years. Holdaway v. Holdaway, 338 Ga. App. 477, 789 S.E.2d 817 (2016).
Grandparents were properly granted sole legal and physical custody of the older child because, given the parent's continued relationship with a convicted sex offender, the child would likely suffer physical harm if returned to the parent's custody; however, in the absence of any evidence that the parent was currently using drugs or storing the drugs in the parent's home, the fact that the parent had previously smoked marijuana and had previously stored marijuana in a child's lunchbox did not support the conclusion that the parent's current conduct posed a threat to the parent's children. Mashburn v. Mashburn, 353 Ga. App. 31, 836 S.E.2d 131 (2019).
Maternal grandparents were properly awarded permanent custody of the child because the child lived with the grandparents from the age of three months; both of the child's parents failed to care for the child, and the grandparents had assumed those responsibilities; the grandparents paid for and supported the child in various extracurricular activities, bought the child's clothes, and placed the child in school; and, after the child returned from visitation with the father, the child was irritable with family members and had visible bug bites on the child's body. Braddock v. Lindsey, Ga. App. , 845 S.E.2d 731 (2020).
Joint placement with grandparents and father appropriate.
- Award of custody to the father and the paternal grandparents was supported by evidence that the child had significant mental health issues, many of which were the result of the high conflict between the mother and the father, and that the mother promoted the conflict by the mother's efforts to alienate the child from the father and the father's family, the mother failed to set limits or discipline the child, and the mother failed to recognize or deal with the child's disruptive behavior. Mauldin v. Mauldin, 322 Ga. App. 507, 745 S.E.2d 754 (2013).
Surrender of parental rights and equity.
- Trial court erred by invoking equity as a basis to grant custody of the twins to their biological mother because when the mother surrendered the mother's parental rights to the twins the mother forfeited the mother's custody rights to them, when the adoptive father adopted them the father gained the right to their custody, and the mother was not included within the list of third parties under O.C.G.A. § 19-7-1 permitted to seek custody against a parent when the mother filed her custody petition. Oni v. Oni, 351 Ga. App. 400, 830 S.E.2d 775 (2019), cert. denied, No. S19C1608, 2020 Ga. LEXIS 158 (Ga. 2020).
Tort Recovery
1. Intrafamily Immunity
Immunity from tort liability was personal to parent and may not be relied on by another as shield to avoid liability. Barnwell v. Cordle, 438 F.2d 236 (5th Cir. 1971).
Policies underlying parental tort immunity.- Unemancipated minor cannot maintain action against parent for personal injuries caused by latter's negligence on principal ground that maintenance of such action would be unduly detrimental to authority and obligations of parent with respect to parent's children as expressly provided for in positive statutory law of Georgia, but also on grounds of preventing fraud, harassment, and preserving financial integrity of the family. Barnwell v. Cordle, 438 F.2d 236 (5th Cir. 1971).
Parent's tort immunity was not absolute, but was limited by public policy regarding parental authority. Barnwell v. Cordle, 438 F.2d 236 (5th Cir. 1971).
Statute contained dividing line between liability and no liability in tort cases; if parent should so violate parent's obligations as to work a forfeiture of parent's right of control, as by cruelty or otherwise, and child sustained injury thereby, child may maintain action against parent for legal wrong thus committed. Bulloch v. Bulloch, 45 Ga. App. 1, 163 S.E. 708 (1932).
When child may sue parent for injury.
- While unemancipated minor child has no cause of action against parent for simple negligence, such child may maintain action for personal injury against parent for willful or malicious act, provided it is such an act of cruelty as to authorize forfeiture of parental authority. Wright v. Wright, 85 Ga. App. 721, 70 S.E.2d 152 (1952).
Unemancipated minor may recover from father for personal injuries sustained in automobile accident caused by father's drunkenness. Barnwell v. Cordle, 438 F.2d 236 (5th Cir. 1971).
No tort immunity runs to parent of adult child who lives in home of parents because there is no legal obligation resting upon parents to support a child after the child reaches majority, nor is there any legal obligation resting upon a child, after reaching majority, to remain in parents' home and perform, in return for care and attention given by them, the duties usually performed by a child who is unemancipated. Barnwell v. Cordle, 438 F.2d 236 (5th Cir. 1971).
Parent's immunity from tort liability to children does not survive parent's death, because parental immunity in Georgia is firmly bottomed on authority of parent over child, and whenever parental authority is terminated, whether as a result of malicious and willful conduct by parent amounting to a forfeiture of that authority, or by natural and orderly loss of authority that takes place when child reaches adulthood, even when child continues to live in parents' household, parental immunity ends with it. Barnwell v. Cordle, 438 F.2d 236 (5th Cir. 1971).
Parent driving under the influence.
- While a mother was driving under the influence of alcohol at the time of the automobile accident in which her son was injured, she did not commit a malicious or willful act of such cruelty so as to authorize forfeiture of parental authority; accordingly, pursuant to O.C.G.A. § 19-7-1, neither the son nor the father were entitled to relief. Donegan v. Davis, 310 Ga. App. 446, 714 S.E.2d 49 (2011).
No tort immunity for personal representative of deceased parent or child.- Tort immunity between parent and child does not extend to personal representative of deceased parent or child. Barnwell v. Cordle, 438 F.2d 236 (5th Cir. 1971).
Reason for termination of intrafamily tort immunity upon death of protected person is that death terminates family relationship and there is no longer a relationship in which state or public policy has an interest. Barnwell v. Cordle, 438 F.2d 236 (5th Cir. 1971).
2. Recovery Against Third PersonsRight of action for negligent homicide, or wrongful death, of child is vested in parents. Harden v. United States, 485 F. Supp. 380 (S.D. Ga. 1980), rev'd in part on other grounds, 688 F.2d 1025 (5th Cir. 1982).
Trial court erred in granting summary judgment to a decedent's father in a legal malpractice claim against the estate attorneys and attorneys who prosecuted a wrongful death action on behalf of the decedent's estate as the attorneys owed no duty to the father, there was no attorney-client relationship between the father and the attorneys because the estate administrator had hired the attorneys, and the father was not an intended third-party beneficiary that could sue, but rather was possibly just an incidental third-party beneficiary; the wrongful death statute, O.C.G.A. § 19-7-1(c)(2), put the duty on the father to apportion the wrongful death award, as the attorney would have committed malpractice by acting in the father's interests since the client was the mother and the decedent's half-brother, who was the estate administrator. Rhone v. Bolden, 270 Ga. App. 712, 608 S.E.2d 22 (2004).
Parents' wrongful death claim failed.
- Parents' wrongful death claim under O.C.G.A. § 19-7-1 pertaining to an unclipped rear seat failed on summary judgment because the unclipped seat did not contribute to their child's fatal skull fracture, and there was thus no evidence showing proximate causation under O.C.G.A. § 51-1-11(b)(1) between the unclipped seat and the child's death; the parents also did not assert a survival action in order to permit recovery for pain and suffering in that such damages were not permitted under O.C.G.A. §§ 19-7-1 and51-4-1. Davenport v. Ford Motor Co., F. Supp. 2d (N.D. Ga. Dec. 11, 2007).
Legislative intent.
- Legislature intended to protect the right of both parents, regardless of their marital status, to a cause of action for the wrongful death of their child. Belco Elec., Inc. v. Bush, 204 Ga. App. 811, 420 S.E.2d 602 (1992).
Regardless of a mother and son's relative financial situations and any question of dependency at the time of the son's death or in the future, it could not be credibly argued that an aging parent losing an adult child was not damaging to the social and economic order, a primary concern of the wrongful death laws, nor was such an argument in concert with the express legislative directive of a recovery in all instances of the homicide of a child under O.C.G.A. § 19-7-1(c). Carringer v. Rodgers, 276 Ga. 359, 578 S.E.2d 841 (2003).
Construction with O.C.G.A.
§ 51-1-18(a). - Trial court erroneously denied a motion to dismiss a personal injury action filed by two parents against two social hosts, arising out of the death of the parents' 20-year-old daughter, which alleged that the social hosts served the daughter alcohol, and the daughter died when the daughter drunkenly drove into a tree after leaving the social hosts' home, as the action was barred due to the fact that the daughter had already reached the age of majority at the time of the accident. Penny v. McBride, 282 Ga. App. 590, 639 S.E.2d 561 (2006), cert. denied, No. S07C0478, 2007 Ga. LEXIS 223 (Ga. 2007).
Intent was not to have wrongdoer spouse profit from wrongs.
- In enacting the Wrongful Death Act, O.C.G.A. § 51-4-1 et seq., the legislature authorized recovery for the homicide of a child and unquestionably did not intend that a wrongdoer should be able to profit from wrongdoing. Since the surviving spouse would have to sue themselves to recover for their own negligence, a legal impossibility, and a result in plain contravention of the legislative purpose of the wrongful death statute, it was proper to allow the decedent's parent to proceed on behalf of the decedent against the spouse. Belluso v. Tant, 258 Ga. App. 453, 574 S.E.2d 595 (2002).
Right to recover for the wrongful death of a child, who dies without leaving a spouse or child, is a single cause of action vested jointly in the parents of the deceased if they are married and living together, and if both parents are living but are divorced, separated, or living apart, the right shall be in both parents. Belco Elec., Inc. v. Bush, 204 Ga. App. 811, 420 S.E.2d 602 (1992).
Trial court properly ordered a new trial limited to the issue of a father's damages in a medical malpractice action for the wrongful death of a child as the parents were living together and were not divorced; the father could sue the doctor for one-half of the full value of the deceased child's life and regardless of the doctor's degree of negligence in relation to the mother's, the father could recover the father's entire loss from the doctor, and whether to allow the doctor to enforce a right of contribution from the mother was a matter addressing itself to the discretion of the trial court. Roberts v. Aderhold, 273 Ga. App. 642, 615 S.E.2d 761 (2005).
Rights of divorced parent in wrongful death.
- Because divorced mother did not bring the action on behalf of both parents, divorced father had the right to intervene pursuant to O.C.G.A. § 19-7-1(c)(2)(C) and protect whatever interest he had in the recovery. Hulsey v. Hulsey, 212 Ga. App. 269, 441 S.E.2d 477 (1994).
Only instances in which the statute specifically authorizes a divorced parent to proceed without the other is when the other parent cannot be located or if that parent refuses to proceed. Hulsey v. Hulsey, 212 Ga. App. 269, 441 S.E.2d 477 (1994).
Trial court did not err in awarding 95 percent of the settlement proceeds for a son's wrongful death to his surviving mother and 5 percent to his surviving father when the evidence showed that the father failed to maintain any significant contact with the son in the 17 years that elapsed between the parents' divorce and when the son was killed in an automobile accident at age 20. Hall v. Bailey, 253 Ga. App. 595, 560 S.E.2d 76 (2002).
Temporary guardianship did not result in forfeiture or right to wrongful death action.
- Mother did not forfeit her right to maintain a wrongful death action by executing a temporary guardianship. Uniroyal Goodrich Tire Co. v. Adams, 221 Ga. App. 705, 472 S.E.2d 518 (1996).
Recovery for wrongful death in Georgia is limited to the full value of the life without deduction for necessary or personal expenses of the decedent and does not include recovery for mental anguish or emotional distress. Ob-Gyn Assocs. v. Littleton, 259 Ga. 663, 386 S.E.2d 146 (1989), overruled on other grounds, Lee v. State Farm Mut. Ins. Co., 272 Ga. 583, 533 S.E.2d 82 (2000), overruled on other grounds, Shores v. Modern Transp. Servs., 262 Ga. App. 293, 585 S.E.2d 664 (2003).
O.C.G.A. § 19-7-1 provides that parents of a deceased child shall be entitled to recover the full value of the life of the child; parents do not have an independent right of action to recover for their own emotional distress and mental suffering. Crockett v. Norfolk S. Ry., 95 F. Supp. 2d 1353 (N.D. Ga. 2000), aff'd, 239 F.3d 370, (11th Cir. 2000).
Impact of parent's contributory negligence.
- Trial court properly ordered a new trial limited to the issue of a father's damages in a medical malpractice action for the wrongful death of a child because the jury verdict "in favor of the plaintiffs," necessarily reflected either a jury finding that the mother's contributory negligence barred a recovery by the father, which was contrary to the law, or that the father was not injured by the child's death, which was contrary to the evidence. Roberts v. Aderhold, 273 Ga. App. 642, 615 S.E.2d 761 (2005).
Trial court properly denied a mother's motion for a new trial after a verdict in favor of the parents in a medical malpractice action for the wrongful death of a child as the jury was authorized to find that even though a doctor was negligent, the mother's contributory negligence was equal to or greater than that of the doctor and thus defeated the mother's right of recovery; the parents claimed that the child was stillborn due to the mother's gestational diabetes and the doctor claimed that the mother was negligent in failing to advise the doctor of the mother's family history of diabetes and in failing to follow the doctor's medical instructions. Roberts v. Aderhold, 273 Ga. App. 642, 615 S.E.2d 761 (2005).
No forfeiture of parental rights thus recovery allowed.
- Despite evidence of a parent's cruel treatment of the parent's decedent son, the trial court erred in finding that the parent forfeited parental rights, and thus lost the status as a parent and, in so doing, lost the right to recover as an heir of the decedent's estate as the loss of parental power did not necessarily result in a parent's loss of a right to inherit as an heir from the estate of that parent's child, short of having the parent's rights terminated prior to the child's death; hence, summary judgment against the parent on the issue was reversed. Blackstone v. Blackstone, 282 Ga. App. 515, 639 S.E.2d 369 (2006).
Parent cannot sue for tort to child absent direct pecuniary injury.
- Parent cannot maintain action for wrong done to minor child unless parent has incurred some direct pecuniary injury therefrom, in consequence of loss of service, or necessary expenses incurred thereby. Southern Ry. v. Neeley, 101 Ga. App. 488, 114 S.E.2d 283 (1960).
Action for loss of child's services.
- To recover for loss of services of minor child, it is not essential that the child should be actually rendering services to parent at time of injury; the parent's right to services which child is capable of rendering is sufficient to support action. Evans v. Caldwell, 52 Ga. App. 475, 184 S.E. 440 (1936), aff'd, 184 Ga. 203, 190 S.E. 582 (1937).
Loss of services may be awarded as part of the full value of a deceased child's life. South Fulton Medical Ctr. Inc. v. Poe, 224 Ga. App. 107, 480 S.E.2d 40 (1996).
Parent may recover medical, funeral, and burial expenses.
- In tort action for loss of services, when mother has lawful custody of minor child, trial judge erred in striking portions of complaint seeking recovery for loss of services and for medical, funeral, and burial expenses. Peppers v. Smith, 151 Ga. App. 680, 261 S.E.2d 427 (1979).
Action for medical and funeral expenses of a child may be brought by either parent, and it is a question of fact as to which parent has actually incurred such expenses. Atkinson v. Atkinson, 249 Ga. 247, 290 S.E.2d 423 (1982).
In a wrongful death action brought by the father of the decedent, who died leaving no surviving wife or children, the interests of the plaintiff's ex-wife, the decedent's mother, who was initially unwilling to participate in the case, were already represented by the father. The fact that she was not a named party neither impaired her ability to protect her interests nor subjected either party to inconsistent or multiple obligations. Therefore, the father failed to establish that joinder was compulsory under the Federal Rules of Civil Procedure. Barron v. Spectrum Emergency Care, Inc., 619 F. Supp. 1011 (N.D. Ga. 1985).
Parent forfeits wrongful death settlement right through failure to pay support.
- Parent of a child who is the victim of homicide may forfeit his or her right to participate in the proceeds of a wrongful death settlement through failure to pay support during the child's life. A prior adjudication of abandonment or termination of parental rights is not a prerequisite to a finding that a parent has forfeited his or her right to participate in the proceeds of a settlement for wrongful death of the parent's child. Ramos v. Ramos, 173 Ga. App. 30, 325 S.E.2d 415 (1984).
Parent's wrongful death settlement right not forfeited by minimal support.
- Divorced father did not forfeit his right to share with his former wife in the proceeds of a settlement in an action for the wrongful death of his child, when, although his contribution of support to the child may have been paltry, his parental rights had not been terminated. Dove v. Carver, 197 Ga. App. 733, 399 S.E.2d 216 (1990).
Father must have provided support to recover for child's death.
- For a biological father to participate in a recovery based upon the wrongful death of his child born out of wedlock, he must have provided reasonable financial support during the lifetime of the child. Sapp v. Solomon, 252 Ga. 532, 314 S.E.2d 878 (1984).
Father was not entitled to proceeds from settlement of wrongful death suit by the child's mother since, under the standards of O.C.G.A. § 19-7-1(c)(6), the trial court determined that he lacked any meaningful relationship with the child as shown by evidence concerning custody, control, and lack of support, and the poor example he set. Richardson v. Barber, 241 Ga. App. 254, 527 S.E.2d 8 (1999).
Wrongful death action not barred by prior personal injury recovery.
- Fact that there had been a prior recovery for a child's personal injury claim and the father's claim for medical and rehabilitation expenses did not extinguish the right of the father to pursue a wrongful death action arising from the subsequent death of the child allegedly due to the original injuries. Winding River Village Condominium Ass'n v. Barnett, 218 Ga. App. 35, 459 S.E.2d 569 (1995).
Parent's right survives to representative of parent's estate.
- An existing right of action by a parent to recover for the homicide of a child will survive to the representative of the parent's estate regardless of whether the action was filed during the parent's lifetime. Caylor v. Potts, 183 Ga. App. 133, 358 S.E.2d 291 (1987), overruled on other grounds, Hosley v. Davidson, 211 Ga. App. 529, 439 S.E.2d 742 (1993).
Representative of a parent's estate is not authorized to bring an action for wrongful death of the parent's minor child if there is a surviving parent or other person entitled to bring the action. Hosley v. Davidson, 211 Ga. App. 529, 439 S.E.2d 742 (1993).
Right of administrator of unborn child's estate.- Administrator of the estate of an unborn child had standing to bring a wrongful death action on behalf of the child since it was shown that the mother of the child died in the accident and the identity of the father was unknown. Reese v. United States, 930 F. Supp. 1537 (S.D. Ga. 1995).
Posthumous child in wrongful death action.
- Decedent's posthumous, out-of-wedlock child was entitled to pursue a wrongful death claim under O.C.G.A. § 51-4-2 to the exclusion of the decedent's parents. Under the statute pertaining to descent and distribution, O.C.G.A. § 53-2-1(a)(1), the posthumous child qualified as the decedent's child and to ignore the laws of descent and distribution would run counter to the essence of a wrongful death claim; simply because the decedent's parents wished to share in any award did not render an inequitable result in light of the priority ordinarily given to children by O.C.G.A. § 19-7-1(c)(2). deVente v. Flora, 300 Ga. App. 10, 684 S.E.2d 91 (2009).
Punitive damages are not available in a wrongful death claim since O.C.G.A. § 51-4-1(1), to the extent the statute permits recovery of more than the actual loss to the survivor, is itself punitive. Ford Motor Co. v. Stubblefield, 171 Ga. App. 331, 319 S.E.2d 470 (1984).
When parent cannot recover for value of minor's services.
- Parent loses right to sue for and recover for value of minor child's services by voluntarily releasing parental control to third person, or by failing to provide for his or her maintenance. Southern Ry. v. Flemister, 120 Ga. 524, 48 S.E. 160 (1904).
When evidence shows emancipation by both parents, child possesses sole right of recovery for personal damages. Coleman v. Dublin Coca-Cola Bottling Co., 47 Ga. App. 369, 170 S.E. 549 (1933).
Child may recover against parent's employer under respondeat superior doctrine.- Unemancipated child may recover against parent's employer for injuries sustained by child due to negligence of parent while acting within service of employer, although the child could not recover from the parent. Barnwell v. Cordle, 438 F.2d 236 (5th Cir. 1971).
In a suit brought by parents against the mother's employer for the wrongful death of twin infant girls, allegations of contributory negligence or assumption of the risk by the mother would not defeat recovery for the father. Fulford v. ITT Rayonier, Inc., 676 F. Supp. 252 (S.D. Ga. 1987).
Suit against husband's estate by wife's parents.
- Interspousal immunity doctrine was not a bar to a wrongful death action brought against the estate of a deceased husband by the parents of the wife who died with her husband in the crash of a plane piloted by the husband. Trust Co. Bank v. Thornton, 186 Ga. App. 706, 368 S.E.2d 158 (1988), cert. vacated, 258 Ga. 543, 373 S.E.2d 512 (1988).
Under the Wrongful Death Act, O.C.G.A. § 51-4-1 et seq., and O.C.G.A. § 19-7-1(c), the parent of a decedent child who was murdered by his surviving spouse had standing to bring a cause of action for the wrongful death of the child against the murdering spouse and/or another individual or entity proximately causing the child's death; the parent could recover for the full value of the life of the child. Carringer v. Rodgers, 276 Ga. 359, 578 S.E.2d 841 (2003).
Relationship with grandparents considered in apportioning settlement.
- In an action arising from the death of a child of divorced parents, it was not error for the court to consider the relationship of the child with his maternal grandmother in apportioning the settlement. Wymbs v. Stokes, 236 Ga. App. 742, 512 S.E.2d 669 (1999).
Attorney's fees when divorced parents represented separately.
- Since each parent was represented by independent counsel, and the mother's attorney was only entitled to recover fees based on the overall settlement proceeds that were procured for that attorney's client, the attorney fees award for the mother's counsel should have only been $ 65,000 (i.e., 40% of $ 162,500). Weathers v. City of Hinesville, 260 Ga. App. 6, 578 S.E.2d 477 (2003).
Recoupment of attorney's fees.
- Trial court committed plain error in denying a clients motion for recoupment of attorney fees from a former attorney, as such was solely based on a contingent fee agreement, the client's maintained an interest in any recovery in the pending wrongful death suit under O.C.G.A. § 19-7-1(c)(2)(C) despite the client's withdrawal from the suit, and the attorney was entitled to a reasonable fee in quantum meruit. Amstead v. McFarland, 279 Ga. App. 765, 632 S.E.2d 707 (2006).
3. Amounts Recoverable
Uneven apportionment between parents upheld.
- Trial court did not abuse the court's discretion in apportioning wrongful death settlement proceeds concerning a father and mother's deceased child, granting the father only 20 percent of the proceeds, as the trial court did not abuse the court's discretion in finding that, during a significant portion of the child's life, the father was incarcerated, used methamphetamine, and the mother had primary custody and control of the child; moreover, although the trial court did not specifically enumerate every factor upon which the court based the court's decision, there was no requirement that the court do so. Brewer v. Harvey, 278 Ga. App. 503, 629 S.E.2d 497 (2006).
Decisions Under Former Code 1933, § 105-13071. In General
Basis for right of recovery granted.
- This right of action is founded on premise that deceased would have been entitled to action against wrongdoer if death had not ensued, based on breach of duty owed to deceased at time of injury. Caskey v. Underwood, 89 Ga. App. 418, 79 S.E.2d 558 (1953).
Right of action for negligent homicide or wrongful death of child is vested in parents. Harden v. United States, 485 F. Supp. 380 (S.D. Ga. 1980), rev'd in part on other grounds, 688 F.2d 1025 (5th Cir. 1982).
Section confers property right upon parents.
- Right of action which vests under former Code 1933, § 105-1307 in parents for recovery of monetary compensation for homicide of minor child was a property right. Blue Ridge Park Nurseries v. Owen, 41 Ga. App. 98, 152 S.E. 485 (1930).
Former Code 1933, § 105-1307 did not authorize action by wife against husband for wrongful death of child. Harrell v. Gardner, 115 Ga. App. 171, 154 S.E.2d 265 (1967); Walker v. Walker, 122 Ga. App. 545, 178 S.E.2d 46 (1970).
When child had married but was not survived by spouse or children, parent may recover.
- When parental bond has previously been severed by marriage of deceased but she was not survived by husband or children, her mother is entitled to sue for full value of her life. Royal Crown Bottling Co. v. Bell, 100 Ga. App. 438, 111 S.E.2d 734 (1959).
Foster mother cannot, in individual capacity, maintain suit for damages for death of foster son. Smith v. Jones, 72 Ga. App. 638, 34 S.E.2d 623 (1945).
Father who has not legitimated a child cannot maintain wrongful death action. Parham v. Hughes, 441 U.S. 347, 99 S. Ct. 1742, 60 L. Ed. 2d 269 (1979).
Georgia wrongful death statute does not violate U.S. Const., amend. 14 (equal protection clause) as to fathers of illegitimate children. Hughes v. Parham, 241 Ga. 198, 243 S.E.2d 867 (1978), aff'd, 441 U.S. 347, 99 S. Ct. 1742, 60 L. Ed. 2d 269 (1979).
Fetus becomes a child when it is "quick" or capable of moving in mother's womb. Porter v. Lassiter, 91 Ga. App. 712, 87 S.E.2d 100 (1955).
Suit may be maintained by mother for loss of child that was "quick" in her womb at time of homicide. Porter v. Lassiter, 91 Ga. App. 712, 87 S.E.2d 100 (1955).
Whether unborn child was "quick" not "viable" is test.
- Cause of action will not arise if child was not "quick" at the time of the child's death. It is not necessary for child to be "viable" provided the child was "quick", that is, able to move in the mother's womb. Porter v. Lassiter, 91 Ga. App. 712, 87 S.E.2d 100 (1955).
Upon death of parent suing, temporary administrator may become party plaintiff.
- Upon death of mother suing for negligent homicide of her child, temporary administrator of her estate may be made party plaintiff to action. Roadway Express, Inc. v. Jackson, 77 Ga. App. 341, 48 S.E.2d 691 (1948).
2. Pleadings
Parent must affirmatively plead facts bringing case within section.
- At common law, action for damages on account of death of human being would not lie; therefore, former Code 1933, § 105-1307 was in derogation of common law, and unless mother, suing for death of her son sui juris, affirmatively pleads facts essential to bring herself within provisions of act, she is not entitled to maintain suit. Clements v. Pollard, 53 Ga. App. 544, 186 S.E. 587 (1936).
Former Code 1933, § 105-1307 was in derogation of common law, and plaintiff suing thereunder must affirmatively plead facts essential to bring herself within the law's provisions. Garden City Cab Co. v. Ransom, 86 Ga. App. 247, 71 S.E.2d 443 (1952).
Petition omitting such allegations may be amended.
- When petition failed to set out cause of action only in omitting allegation that plaintiff's son, who was unmarried and for whose homicide plaintiff was suing to recover, left no children, judgment sustaining demurrer (now motion to dismiss) to petition would be affirmed, but with direction that plaintiff be allowed to amend petition by supplying such necessary omitted allegation. Helton v. Western & A.R.R., 67 Ga. App. 23, 19 S.E.2d 312 (1942).
It must appear from petition that child left no wife or children of his own.
- Mother has no right to sue for death of her son when he leaves a wife or child, and, when she does so sue, it must affirmatively appear from petition that he left no wife or child, or the suit is subject to dismissal. Clements v. Pollard, 53 Ga. App. 544, 186 S.E. 587 (1936).
Parent may recover hospital, medical, and funeral expenses.
- Mother who is sole surviving parent of minor child whose death is caused by negligence of mother may recover for hospital, medical, and funeral expenses resulting therefrom. Saunds v. Forsythe, 112 Ga. App. 269, 144 S.E.2d 926 (1965).
Measure of damages is not dependent upon expectancy of parent.
- Right of action accrues to mother who was in life when child died, and measure of damages is full value of life of such child. The measure of damages, therefore, is not dependent upon expectancy of mother. The amount that may be recovered in action of this kind, as well as the person who may sue, is determined by statute as of date of death of child, and if action survives to administrator it would seem to do so for all purposes. Roadway Express, Inc. v. Jackson, 77 Ga. App. 341, 48 S.E.2d 691 (1948).
Parent cannot recover for own mental or physical suffering.
- Georgia law does not make basis of recovery for wrongful death mental or physical suffering of person bringing action. The action to recover damages on account of negligent homicide is not an action seeking to recover for mental pain and suffering. Hudson v. Cole, 102 Ga. App. 300, 115 S.E.2d 825 (1960).
Emotional upset of person bringing action was no part of measure of damages under former Code 1933, § 105-1307, which clearly stated that mother or father shall be entitled to recover full value of life of child, which full value was defined in former Code, §§ 105-1301 and 105-1308 (see now O.C.G.A. § 51-4-1) in economic terms, but not in terms of emotion. Hudson v. Cole, 102 Ga. App. 300, 115 S.E.2d 825 (1960).
Considerations in ascertaining full value of child's life.
- When there is no evidence whatever on earnings or earning capacity, and when such evidence is not necessary to recovery, and when jury has not been instructed by trial court to determine full value of life of deceased child based on what she would have earned during her life expectancy, it is not error for trial court to charge only former Code 1933, §§ 105-1307, 105-1309, and 105-1310 (see now O.C.G.A. §§ 51-4-4 and51-4-5), and thus leave full value of life of child to enlightened conscience of an impartial jury, based on evidence of child's age, precocity, services rendered up to time of death, circumstances of family, and from experience and knowledge of human affairs on part of jury. Collins v. McPherson, 91 Ga. App. 347, 85 S.E.2d 552 (1954).
Evidence of future earnings unnecessary if there is no selection of vocation.
- In case of parent suing for death of minor child, it is not necessary for evidence to show what future earnings might be in cases when there is no selection of vocation or other facts from which future earnings can be determined. Collins v. McPherson, 91 Ga. App. 347, 85 S.E.2d 552 (1954).
When question of damages left to judgment, experience, and conscience of jury.
- In cases of infants of tender years, it is impossible to give exact evidence of pecuniary value of probable loss, and question of damages or loss is left to sound judgment, experience, and conscience of jury without any exact proof thereof. The enlightened conscience of a jury means also the jury's informed conscience. Seaboard Coast Line R.R. v. Duncan, 123 Ga. App. 479, 181 S.E.2d 535 (1971).
Awards under section need not be reduced to present value.
- In both compensatory and penal elements of verdict in wrongful death of minor child case, jury is guided by the jury's discretion in assessing amount and not by pecuniary loss to plaintiff. This being so, Court of Appeals will not hold that such amount, when assessed, will be such a future benefit as must be reduced to present cash value before the amount can legally be awarded. Collins v. McPherson, 91 Ga. App. 347, 85 S.E.2d 552 (1954).
3. Application
Contributory negligence of parent as bar to recovery for wrongful death of child.
- Failure of mother, at time and place which she knew were dangerous, to have three year old child where she could control and direct child's movements was, as a matter of law, such lack of ordinary care as would prevent recovery for her own benefit for death of child, even conceding that defendant company was negligent. Woodham v. Powell, 61 Ga. App. 760, 7 S.E.2d 573 (1940).
Negligence of person having custody with parent's consent is attributed to parent.
- When parent who brings suit gave consent to another to exercise custody over child, then negligence of custodian is attributed to parent so as to bar recovery. Herring v. R.L. Mathis Certified Dairy Co., 118 Ga. App. 132, 162 S.E.2d 863 (1968), rev'd in part on other grounds, 225 Ga. 67, 166 S.E.2d 89 (1969), appeal dismissed, 400 U.S. 922, 91 S. Ct. 192, 27 L. Ed. 2d 183 (1970).
Availability of workers' compensation precludes recovery under section.
- Action by parent for homicide of minor child is statutory in origin, and may be maintained only within purview of legislative grant, and if the plaintiff's decedent is an employee of the defendant within the purview of the Workers' Compensation Act, all other rights and remedies of the plaintiff are excluded. AMOCO v. McCluskey, 116 Ga. App. 706, 158 S.E.2d 431 (1967), rev'd on other grounds, 224 Ga. 253, 161 S.E.2d 271 (1968).
OPINIONS OF THE ATTORNEY GENERAL
When parent surrenders control to third party, minor remains unemancipated.
- Emancipation occurs when parent surrenders parental control of minor child; however, when parent voluntarily surrenders control to third party, there is a substitution of parental control, and minor continues unemancipated as to one to whom minor's custody and control is transferred. 1980 Op. Att'y Gen. No. 80-152.
Domicile of minor is that of minor's parents, but this can be altered when usual parental authority and control over minor is ended by voluntary or involuntary relinquishment. 1981 Op. Att'y Gen. No. U81-5.
Change of child's domicile for school purposes.- Domicile of child for school purposes can be altered by voluntary relinquishment of parental authority if proper legal action has been taken or circumstances are present which secure to person with whom child is residing some legal obligation as to the child's welfare and education. 1970 Op. Att'y Gen. No. U70-8.
RESEARCH REFERENCES
Am. Jur. 2d.
- 22A Am. Jur. 2d, Death, § 4. 59 Am. Jur. 2d, Parent and Child, §§ 34, 35, 37 et seq., 99. 67A C.J.S., Parent and Child, §§ 19, 23, 24, 53, 137.
19 Am. Jur. Pleading and Practice Forms, Parent and Child, § 126 et seq.
ALR.
- Liability for or on account of services rendered under erroneous impression as to parentage induced by fraud or mistake, 33 A.L.R. 681.
What items of damage on account of personal injury to infant belong to him and what to parent, 37 A.L.R. 11; 32 A.L.R.2d 1060.
Attempt to bastardize child as affecting right to custody of the child, 37 A.L.R. 531.
Liability of parent for necessaries furnished to adult child, 42 A.L.R. 150.
Abandonment of adopted child, 44 A.L.R. 820.
On whose behalf may action be maintained for the wrongful death of adopted child, 56 A.L.R. 1349.
Liability of infant for necessaries where he lives with his parents, 70 A.L.R. 572.
Relationship of parent and child between tort-feasor and person by whom or for whose benefit death action is brought as affecting right to maintain action under death statute, 119 A.L.R. 1394.
Right of parent to recover for injury to or death of minor child as affected by award of custody of child to another, 147 A.L.R. 482.
By and in whose name suit to annul infant's marriage must be brought, 150 A.L.R. 609.
Right of natural parent, or other person whose consent is necessary to adoption of child, to withdraw consent previously given, 156 A.L.R. 1011.
Effect of existence of nearer related but nondependent member upon right to sue under death statute in behalf of more remotely related but dependent member of same class, 162 A.L.R. 704.
Marriage of child, or probability of marriage, as affecting right or measure of recovery by parents in death action, 7 A.L.R.2d 1380.
Measure and elements of damages for personal injury resulting in death of infant, 14 A.L.R.2d 485; 45 A.L.R.4th 234; 77 A.L.R.4th 411.
Liability of parent or person in loco parentis for personal tort against minor child, 19 A.L.R.2d 423; 41 A.L.R.3d 904; 6 A.L.R.4th 1066.
Liability of landowner for injury to or death of child caused by cave-in or landslide, 28 A.L.R.2d 195.
Liability of landowner for injury to or death of child resulting from piled or stacked lumber or other building materials, 28 A.L.R.2d 218.
What constitutes abandonment or desertion of child by its parent or parents within purview of adoption laws, 35 A.L.R.2d 662; 78 A.L.R.3d 712.
Consent of natural parents as essential to adoption where parents are divorced, 47 A.L.R.2d 824.
Parents' rights with respect to clothing, books, toys, and the like purchased for, or furnished to, child, 61 A.L.R.2d 1270.
Criminal liability for excessive or improper punishment inflicted on child by parent, teacher, or one in loco parentis, 89 A.L.R.2d 396.
Nature of care contemplated by statute imposing general duty to care for indigent relatives, 92 A.L.R.2d 348.
Award of custody of child where contest is between child's father and grandparent, 25 A.L.R.3d 7.
Spouse's or parent's right to recover punitive damages in connection with recovery of damages for medical expenses or loss of services or consortium arising from personal injury to other spouse or to child, 25 A.L.R.3d 1416.
Uninsured motorist clause: coverage of claim for wrongful death of insured, 26 A.L.R.3d 935.
Extraterritorial effect of valid award of custody of child of divorced parents, in absence of substantial change in circumstances, 35 A.L.R.3d 520.
Parent's desertion, abandonment, or failure to support minor child as affecting right or measure of recovery for wrongful death of child, 53 A.L.R.3d 566.
Physical abuse of child by parent as ground for termination of parent's right to child, 53 A.L.R.3d 605.
Sexual abuse of child by parent as ground for termination of parent's right to child, 58 A.L.R.3d 1074.
Death action by or in favor of parent against unemancipated child, 62 A.L.R.3d 1299.
Remarriage of surviving parent as affecting action for wrongful death of child, 69 A.L.R.3d 1038.
Right of natural parent to withdraw valid consent to adoption of child, 74 A.L.R.3d 421.
Mistake or want of understanding as ground for revocation of consent to adoption or of agreement releasing infant to adoption placement agency, 74 A.L.R.3d 489.
What constitutes "duress" in obtaining parent's consent to adoption of child or surrender of child to adoption agency, 74 A.L.R.3d 527.
Power of parent to have mentally defective child sterilized, 74 A.L.R.3d 1224.
Parent's involuntary confinement, or failure to care for child as result thereof, as evincing neglect, unfitness, or the like in dependency or divestiture proceeding, 79 A.L.R.3d 417.
Right of indigent parent to appointed counsel in proceeding for involuntary termination of parental rights, 80 A.L.R.3d 1141.
Right to maintain action or to recover damages for death of unborn child, 84 A.L.R.3d 411.
Liability for child's personal injuries or death resulting from tort committed against child's mother before child was conceived, 91 A.L.R.3d 316.
Liability for injury to or death of child from electric wire encountered while climbing tree, 91 A.L.R.3d 616.
Parent's obligation to support unmarried minor child who refuses to live with parent, 98 A.L.R.3d 334.
Standing of foster parent to seek termination of rights of foster child's natural parents, 21 A.L.R.4th 535.
Validity and application of statute allowing endangered child to be temporarily removed from parental custody, 38 A.L.R.4th 756.
Construction and effect of statutes which make parent, custodian, or other person signing minor's application for vehicle operator's license liable for licensee's negligence or willful misconduct, 45 A.L.R.4th 87.
Recovery of damages for grief or mental anguish resulting from death of child - modern cases, 45 A.L.R.4th 234.
Excessive and adequacy of damages for personal injuries resulting in death of minor, 49 A.L.R.4th 1076.
Sexual child abuser's civil liability to child's parent, 54 A.L.R.4th 93.
Parent's right to recover for loss of consortium in connection with injury to child, 54 A.L.R.4th 112.
Excessiveness or adequacy of damages awarded for parents' noneconomic loss caused by personal injury or death of child, 61 A.L.R.4th 413.
Validity and construction of surrogate parenting agreement, 77 A.L.R.4th 70.
Recovery of damages for loss of consortium resulting from death of child - modern status, 77 A.L.R.4th 411.
Rights and obligations resulting from human artificial insemination, 83 A.L.R.4th 295.
Continuity of residence as factor in contest between parent and nonparent for custody of child who has been residing with nonparent - modern status, 15 A.L.R.5th 692.
Right of putative father to visitation with child born out of wedlock, 58 A.L.R.5th 669.
Child custody and visitation rights arising from same-sex relationship, 80 A.L.R.5th 1.
Natural parent's indigence as precluding finding that failure to support child waived requirement of consent to adoption - general principles, 82 A.L.R.5th 443.
Natural parent's indigence as precluding finding that failure to support child waived requirement of consent to adoption - factors other than employment status, 84 A.L.R.5th 191.
Who, other than parent, may recover for loss of consortium on death of minor child, 84 A.L.R.5th 687.
Action by or on behalf of minor child, or presumed minor child, for loss of parental consortium - general considerations, 4 A.L.R.7th 1.
Action by or on behalf of minor child, or presumed minor child, for loss of parental consortium - proof, evidentiary considerations, limits of recovery, parties, 5 A.L.R.7th 4.
Action by or on behalf of minor child, or presumed minor child, for loss of parental consortium - impact of other legal concepts and theories of recovery, 6 A.L.R.7th 4.