Clark v. Wade

¶1In these two child custody disputes, the maternal grandparents challenge the trial court’s award of custody to the noncustodial father. The trial courts found in both cases that it would be in the best interest of each child to remain with his grandparents, but struck down the “best-interest-of-the-child” standard in OCGA § 19-7-1 (b.l) as unconstitutional. We granted the grandparents’ discretionary applications to determine whether the best-interest-of-the-child standard is constitutional in custody disputes between a parent and a third party. Considering the fundamental rights of parents, we construe the custody statute as requiring the third party to show by clear and convincing evidence thát parental custody would harm the *588child in order to rebut the statutory presumption in favor of the parent. With that narrowing construction, we uphold as constitutional the best interest standard when applied to custody disputes between a biological parent and custodial third party under OCGA § 19-7-1 (b.l). Therefore, we reverse and remand.

¶2I. FACTS AND PROCEEDINGS

¶3Both of these appeals concern a custody dispute between a single, noncustodial parent and relatives who have physical custody of the child. Thus, these cases do not involve the removal of a child from the parent’s home, but rather the possible reunification of parent and child.1

¶4S00A1610. Clark v. Wade.

¶5Warren Wade was born in 1994 to Melissa Wright and Douglas Wade and has lived with his maternal grandparents, Margie and James Clark, since 1995. When Warren’s parents divorced in 1996, his mother was awarded custody. She left him to be raised by his grandparents, who were already raising his older brother, and Warren’s father exercised regular visitation rights. In 1999, Melissa Wright was arrested for a drug violation, and Douglas Wade sought custody of their five-year-old child. The trial court awarded him temporary custody, and the grandparents moved to intervene in the custody proceeding. The trial court found that it would be in the best interest of the child to remain in the custody of the grandparents, but struck down the best interest standard in OCGA § 19-7-1 (b.l) as “constitutionally insufficient” and awarded custody to the father. This Court granted the grandparents’ application to appeal to consider whether the statute was unconstitutional under our ruling in Brooks v. Parkerson 2

¶6S00A2014. Driver v. Raines.

¶7Justin Casey Veal was born in 1992 and is the child of-Dawn Driver and John Raines, who never married. The child has lived with his mother and maternal grandparents most of his life. The state sought child support from the father in 1995; the father filed a peti*589tion for legitimation in 1996; and Justin lived with his father from June 1996 to January 1997. When Justin returned home to his mother and grandparents, he complained about his arm and doctors determined that it had been broken for a week. The father filed a petition for custody, and the maternal grandparents intervened. In response to the father’s constitutional challenge, the trial court ruled that § 19-7-1 (b.l) failed to articulate any standard and allowed the factfinder to substitute its subjective judgment about the child’s best interest for the parent’s decision, thus depriving parents of their liberty and privacy interests in the care, custody, and management of their children. Accordingly, the trial court held that the statute was unconstitutional and awarded custody to the father. This Court granted the grandparents’ application and consolidated their appeal with Clark v. Wade.

¶8II. STATUTORY CONSTRUCTION

¶9OCGA § 19-7-1 (b.l) governs custody disputes between a biological parent and a limited number of third parties who are related to the child. They include a grandparent, aunt or uncle, great aunt or uncle, sibling, or adoptive parent. The statute provides that a parent may lose custody if a trial court determines that the best interest of the child supports an award of custody to the third party. There is a presumption that it is in the child’s best interest to remain in the custody of the parent, but the third party may rebut that presumption. The statute provides:

[I]n 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 rebut-table 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.3

¶10*590Enacted in 1996, this statute adopts the same standard — best interest of the child — for custody disputes between a parent and third party as applies in custody disputes between two parents4 or third parties.5 The primary difference is that OCGA § 19-7-1 (b.l) establishes a rebuttable presumption that parental custody is always in the child’s best interest, thus favoring the biological parent over the third party.

¶11Parental Rights and Fitness Standards

¶12In construing statutes, we must consider the legislative intent, keeping in mind “the old law, the evil, and the remedy.”6 Under prior case law, the biological parent had a prima facie right to custody in an initial contest with any third party, including grandparents,7 stepparents,8 and adopting parents.9 A third party who sought custody had to show that (1) the parent had lost his or her parental power or (2) the parent was unfit.10

¶13Under the parental rights standard, a third party could gain custody in a dispute with a parent only by proving by clear and convincing evidence that the parent had lost his or her parental power.11 A parent could lose parental power in one of these ways: voluntary contract, consent to adoption, failure to provide necessaries or abandonment, consent to the child’s receiving the proceeds of his labor, consent to the child’s marriage, cruel treatment, or rearing the child under immoral influences.12

¶14Strict adherence to the parental rights standard sometimes resulted in unjust decisions that ignored the health and welfare of the child. For example, this Court reversed an award of custody to a stepfather with whom the child had lived and ruled instead that the *591biological father was entitled to custody after the mother’s death, despite his having provided no financial support or sought any visitation with his daughter in the seven years since his divorce from the mother.13 Our decision was based in part on the well-settled legal principle that a parent’s failure to support a minor child was not “a failure to provide necessaries or such abandonment as will amount to a relinquishment of the right of the parent to parental custody and control” when the mother never sought support.14 As one commentator concluded after reviewing the cases on relinquishment of a child by voluntary contract, “[A]dherence to the parental rights doctrine has led child custody cases into the thickets of the technicalities of contract law and away from the more relevant question of what is best for the child.”15

¶15Because of the harshness of the parental rights standard, this Court adopted a second standard by which a parent could lose custody in exceptional circumstances.16 Under the fitness standard, the third party had to prove by clear and convincing evidence that the biological parent was unfit. In deciding parental unfitness, the trial court had to restrict its inquiry to the parent’s present fitness; it could not rely on evidence of the parent’s past unfitness17 or compare the parent’s ability to raise the child with the superior fitness of a third person.18

A finding of unfitness must center on the parent alone, that is, can the parent provide for the child sufficiently so that the government is not forced to step in and separate the child from the parent. A court is not allowed to terminate a parent’s natural right because it has determined that the child might have better financial, educational, or even moral advantages elsewhere. Only under compelling circumstances found to exist by clear and convincing proof may a court sever the parent-child custodial relationship.19

¶16*592Although this standard appears fair on its face, its application has caused unfair results because of its reliance on biological connections to the exclusion of other important considerations.20 The fitness standard does not consider the absence of a custodial relationship between parent and child, the parent’s conduct in causing any separation, the emotional bond that the child has developed with the third party due to their day-to-day relationship, or the age, maturity, and special needs of the child. Rather, it automatically vests custody in a biological parent, unless the parent is unfit, to the exclusion of the other relatives who have performed the parental role of nurturing and caring for the child.21

¶17Just as this Court adopted the fitness standard to ameliorate the undesirable consequences of the parental rights standard, we have on occasion rejected or ignored the fitness standard based on “exceptional circumstances.”22 Our overriding concern in these cases has been the interest and welfare of the child. Moreover, a review of third-party custody cases shows that neither the fitness nor the parental rights standard has prevented the trial court from substituting its own judgment when the parent’s behavior offended the court.23 As a result, this Court adopted a rational factfinder test for reviewing child custody decisions on appeal.24

¶18*593Best Interest Standard

¶19In enacting OCGA § 19-7-1 (b.l), the legislature changed the law governing parent-third party custody disputes and added an additional way by which parental power could be lost.25 The Georgia General Assembly intended to replace the parental unfitness standard with the best-interest-of-the-child standard.26 Adoption of this new standard shifts the trial court’s inquiry solely from the current fitness of the biological parent to raise the child to include consideration of the child’s interest in a safe, secure environment that promotes his or her physical, mental, and emotional development. In considering what is in the best interest of the child, the trial court may consider the child’s historical relationship with the parent, the child’s relationship with the third-party custodian, and the child’s special medical, emotional, or educational needs.

¶20What has not changed under the new standard are three presumptions: (1) the parent is a fit person entitled to custody, (2) a fit parent acts in the best interest of his or her child, and (3) the child’s best interest is to be in the custody of a parent.

¶21III. CONSTITUTIONALITY OF BEST INTEREST STANDARD

¶22In considering the constitutionality of the Georgia statute on parent-third party custody disputes, there are two relevant lines of cases. One involves the termination of parental rights, which have usually required a showing of parental unfitness before ending the parent-child relationship.27 The other involves third-party visitation rights, which have historically considered the best interests of the child.

¶23Termination of Parental Rights

¶24The Fourteenth Amendment of the United States Constitution provides that no state shall "deprive any person of life, liberty, or property, without due process of law.” The United States Supreme Court has recognized that parents have a fundamental liberty interest in the care, custody, and management of their children.28 Based on this liberty interest, the Court has concluded that parents have *594the right to establish a home, direct the upbringing of their children, and control their children’s education,29 and the state may not sever the rights of parents in their natural child in a neglect proceeding unless it proves by clear and convincing evidence that the parents are unfit to raise their children.30

¶25In cases dealing with the rights of unwed fathers, however, the Court refused to adopt unfitness as the sole standard for enforcing a biological father’s due process rights, instead distinguishing between a developed parent-child relationship and a potential relationship. For example, the Court in Stanley v. Illinois31 held that an unwed father who had lived with his children and supported them all their lives was entitled to a hearing in a dependency proceeding on his fitness as a parent before the state could take away his children. In contrast, in Lehr v. Robertson,32 where the putative father had assumed no parental responsibility, the Court concluded that his biological link did not merit the same protection as the father’s significant custodial, personal, and financial relationship with his children in Stanley. “ ‘(The) importance of the familial relationship . . . stems from the emotional attachments that derive from the intimacy of daily association, and from the role it plays in “(promoting) a way of life” through the instruction of children ... as well as from the fact of blood relationship.’ ”33

¶26In Quilloin v. Walcott,34 a case arising out of this state, the Supreme Court rejected the unwed father’s contention that he was entitled to an absolute veto over the adoption of his child absent a finding of his unfitness. Instead, the Court concluded that the unwed father’s substantive due process rights were not violated by rejecting his petition to legitimate the child and finding that the stepfather’s adoption was in the child’s best interest. The Court noted that the case did not involve the breakup of a “natural family,” a biological father who had ever sought custody of his child, or the placement of the child with a new set of parents. “Rather, the result of the adoption in this case is to give full recognition to a family unit already in existence.”35 Thus, even when the parental bond is to be severed, the United States Constitution permits courts to use a “best interests” standard.

¶27Unlike the parental termination cases, third-party custody cases *595do not sever the relationship between parent and child. Instead, the parent retains significant rights, including the right to visitation and to obtain custody under changed circumstances.36 When parental rights are not severed, federal constitutional law does not require a showing that the parent is unfit before custody may be awarded to a third party.37

¶28Grandparent Visitation Cases

¶29In the second line of cases, this Court held in Brooks v. Parkerson that our state grandparents’ visitation statute was unconstitutional under both the Georgia Constitution and United States Constitution because it failed to require a showing of harm before visitation could be ordered.38 Reviewing the parents’ protected interest in raising their children against the state’s interest in protecting a child, we concluded that “state interference with a parent’s right to raise children is justifiable only where the state acts in its police power to protect the child’s health or welfare, and where parental decisions in the area would result in harm to the child.”39 As a result, the Georgia General Assembly amended the grandparent visitation statute to require a finding of harm to the health or welfare of the child before visitation is granted.40

¶30The Supreme Court’s decision last term in Troxel v. Granville41 raises the question whether we correctly interpreted federal constitutional law as requiring a showing of harm to the child before a state may intervene in the parent’s right to raise his or her family. In Troxel, the Court declined to strike down the Washington state statute on grandparent visitation as facially invalid, instead holding it unconstitutional as applied.42 The plurality found that the Washington statute was “breathtakingly broad,” allowing any person at any time to petition for visitation rights, and contained no requirement that the parent’s decision about visitation was entitled to any deference or presumption of validity.43 Although the state supreme court had the opportunity to give the statute a more narrow interpretation, it had declined to do so. Reviewing the facts in the case, the Court *596found that the trial court failed to give any weight to the fit custodial parent’s decision, established a presumption in favor of grandparent visitation that the parent had to disprove, and failed to give significant weight to the parent’s offer of meaningful visitation to the grandparents.44

¶31Because the Court based its decision on the sweeping breadth of the statute and the trial court’s application of the statute’s unlimited power, it did not decide whether due process required all grandparent visitation statutes to include a showing of harm as a condition precedent to granting visitation.45 The Court’s plurality decision expressed hesitancy in holding that specific nonparental visitation statutes violate due process as a per se matter, agreeing with Justice Kennedy that the constitutionality of any standard for awarding visitation depends on the manner in which the standard is applied.46 In his dissent, Justice Kennedy notes that every state, except Georgia, employs the best-interest-of-the-child standard and establishes a variety of ways to ensure that parental decisions are given respect.47

¶32Unlike the grandparent visitation cases, however, the custody cases in this appeal do not involve a third party seeking to intrude upon an established parent-child custodial relationship. Instead, they involve a biological parent seeking to gain custody from a third party who has been responsible for the daily care of the child and already has established a family unit for the child. Thus, the relationship among the parent, child, and third-party relative differs in these custody cases from the relationship among the parties in Troxel and other grandparent visitation cases. Applying the Court’s distinction in the unwed father cases, more than a biological link exists between the child and noncustodial father, but the relationship does not rise to the level of a daily association.48

¶33IV. CONSTITUTIONALITY OF OCGA § 19-7-1 (b.l)

¶34Parents have a constitutional right under the United States and Georgia Constitutions to the care and custody of their children. This right to the custody and control of one’s child is “a fiercely guarded right. . . that should be infringed upon only under the most compel*597ling circumstances.”49 Based on our decision in Brooks, the state may interfere with a parent’s right to raise his or her child only when the state acts to protect the child’s health or welfare and the parent’s decision would result in harm to the child.50 Under the parental termination cases, the amount of constitutional protection to be according a biological parent depends on that person’s commitment to his parental responsibilities in raising his child.

¶35Aligned against the parents’ constitutional right is the child’s constitutional right to protection of his or her person51 and the state’s compelling interest in protecting the welfare of children.52

[Although] in most instances it will be found that the legal right of the parent and the interest of the child are the same[, i]f through misconduct or other circumstances it appears that the case is exceptional, and that the welfare of the child requires that it should be separated even from its parent, the parens patriae must protect the helpless and the innocent.53

¶36Relying on this doctrine, we have upheld the constitutionality of laws that terminated the parental rights of mentally deficient parents who were incapable of caring for their children54 and allowed a 14-year-old to select the custodial parent.55 Thus, in certain circumstances, the legislature may enact statutes that permit a child’s interest to prevail over a parent’s constitutional right to custody.

¶37In enacting the parent-third party custody statute, the Georgia General Assembly avoided the constitutional defects that the U. S. Supreme Court plurality found in the Washington visitation statute. First, OCGA § 19-7-1 (b.l) expressly limits third parties who may seek custody to a specific fist of the child’s closest relatives, including an adoptive parent. Second, the statute defers to the fit parent’s decision on custody by establishing a rebuttable presumption in favor of parental custody. What is left open for judicial interpretation is how to determine that an award of custody to the third party “is for the best interest of the child or children and will best promote their welfare and happiness.”

¶38*598Construing the Best Interest Standard

¶39Our judicial responsibility requires us to consider the legislature’s intent in enacting the law and to construe the statute to give effect to that intent when possible. This role means that we must give a narrowing construction to a statute when possible to save it from constitutional challenge.56

¶40Applying a narrowing construction that is consistent with both the legislature’s intent and Brooks v. Parkerson, we interpret the “best-interest-of-the-child” standard in OCGA § 19-7-1 (b.l) as requiring the third party to show that parental custody would harm the child to rebut the statutory presumption in favor of the parent. Once this presumption is overcome, the third party must show that an award of custody to him or her will best promote the child’s health, welfare, and happiness.

¶41By harm, we mean either physical harm or significant, long-term emotional harm; we do not mean merely social or economic disadvantages.57 In addition, we note that the death of a parent, divorce, or a change in home and school will often be difficult for a child, but some level of stress and discomfort may be warranted when the goal is reunification of the child with the parent.

¶42In considering the issues of harm and custody, trial courts should consider a variety of factors that go beyond the parent’s biological connection or present fitness to encompass the child’s own needs. These factors should include:

(1) who are the past and present caretakers of the child;58

(2) with whom has the child formed psychological bonds and how strong are those bonds;59

(3) have the competing parties evidenced interest in, and contact with, the child over time;60 and

(4) does the child have unique medical or psychological *599needs that one party is better able to meet.61

¶43An analysis of these factors, keeping in mind the statutory presumption of parental custody, will enable courts to award custody to a third-party relative only when a real threat of harm would result from parental custody.

¶44Standard of Proof

¶45Normally, “the degree of proof required in a particular type of proceeding is the kind of question which has traditionally been left to the judiciary to resolve.”62 Because of the importance of the individual interests involved, we conclude that the same standard of proof should apply in custody disputes between parents and third parties as applies in termination cases.63 That is, a third-party relative may overcome the statutory presumption in favor of parental custody only by presenting clear and convincing evidence that the award of custody to the parent is not in the best interest of the child. Although we adopt this more stringent burden of proof primarily because of the significance of the parent-child relationship, we note additionally that trial courts have considerable experience in applying it in custody disputes.64

¶46V. CONCLUSION

¶47In conclusion, we interpret the best interest standard in the parent-third party custody statute to mean that the third party must prove by clear and convincing evidence that the child will suffer physical or emotional harm if custody were awarded to the biological parent. Once this showing is made, the third party must then show that an award of custody to him or her will best promote the child’s welfare and happiness. With that construction of the statute, we uphold the best-interest-of-the-child standard as constitutional when applied to custody disputes between a noncustodial parent and third party under OCGA § 19-7-1 (b.l).65

¶48Judgments reversed and cases remanded.