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249 Ga. 686

290 S.E.2d 923

Durden v. Barron

Supreme Court of Georgia

Decided May 4, 1982

Supreme Court of Georgia · decided 1982-05-04

Key passage — most relied on by later courts

“[o]nce a third party has been awarded permanent custody of a child in a court proceeding to which a parent was a party, the roles of the parent and the third party reverse; that is, the third party now has the prima facie right to custody as against the parent who has lost the right to custody. The parent can regain custody upon showing by clear and convincing evidence his or her present fitness as a parent and that it is in the best interest of the child that custody be changed.”

quoted by 4 later decisions, including Callaway v. Garland, 306 Ga. App. 283 - Price v. Wingo

“Where 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 parent does not have a prima facie right to custody.”

quoted by 1 later decision, including 349 Ga. App. 886 - MORGAN Et Al. v. MORGAN.

Relies on Robinson v. Ashmore · Carvalho v. Lewis · Gazaway v. Brackett

Good law ✅— No negative treatment on recordhow we know

Decided 1982-05-04

How this case has been cited

Cited by 13 later decisions — most recently April 2019

13 state decisions

501982199020002010decided

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

View the full empirical analysis of this case →

Smith, Justice.

¶1 The Court of Appeals has. certified the following questions to this court: “1. Where custody of a child has been awarded to one other than its natural parent by a court order which has become final, in a subsequent custody contest between the third party and the parent, is the parent entitled to custody unless it is shown by clear and convincing evidence that such parent is unfit or otherwise not entitled to custody under the law? See Carvalho v. Lewis, 247 Ga. 94 [(274 SE2d 471)]; Wigley v. Bryant, 247 Ga. 487 (277 SE2d 246).

¶2 “2. If the first question is answered in the negative, where a third party has been awarded permanent custody of a child, may a parent obtain custody by showing a change of conditions affecting the welfare of the child? See Robinson v. Ashmore, 232 Ga. 498, 500 (207 SE2d 484); Gazaway v. Brackett, 241 Ga. 127, 129 (244 SE2d 238); Higbee v. Tuck, 242 Ga. 376, 377 (249 SE2d 62).”

¶3 1. It is now settled that, in a custody contest between a parent and third party, the parental right to custody may be lost only if by clear and convincing evidence one of the conditions specified in Code Ann. §§ 74-108, 74-109, or 74-110 or parental unfitness is shown to exist. Miele v. Gregory, 248 Ga. 93 (281 SE2d 565) (1981); Gazaway v. Brackett, supra at 129. This rule presupposes an existing parental right to custody vis a vis the third party. It is thus inapplicable to a parent who has lost the parental right to custody.

¶4 Where 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 parent does not have a prima facie right to custody. Accordingly, the first certified question is answered in the negative.

¶5 2. Once a third party has been awarded permanent custody of a child in a court proceeding to which a parent was a party, the roles of the parent and the third party reverse; that is, the third party now has the prima facie right to custody as against the parent who has lost the right to custody. The parent can regain custody upon showing by clear and convincing evidence his or her present fitness as a parent and that it is in the best interest of the child that custody be changed. Anything to the contrary in Robinson v. Ashmore, 232 Ga. 498 (207 SE2d 484) (1974) and its progeny is hereby overruled.

*687 Decided May 4, 1982 Rehearing denied July 1, 1982 Groover & Childs, Denmark Groover, Jr., Frank H. Childs, Jr., for appellant. J. Alton Gladin, Lawton Miller, Jr., for appellees.

¶6 The second certified question as posed is answered in the negative.

¶7 Certifíed questions answered in the negative.

All the Justices concur.
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