¶1concurring specially.
¶2While I agree with the majority’s determination that the trial court did not abuse its discretion in awarding sole physical custody of the children to their mother, I take issue with its interpretation of OCGA § 19-9-1 (a) (1) in this case. Notwithstanding the prima facie right of custody the majority accords to the prevailing party in a divorce, trial courts are not required to recognize any presumption of entitlement to custody based upon which parent was in default, but instead must give primary emphasis to the best interest of the child in a custody contest between parents. Mock v. Mock, 258 Ga. 407 (369 SE2d 255) (1988). As well established by our case law interpreting OCGA § 19-9-1 (a) (1) and other child custody statutes, “ ‘[i]n a contest between parents over the custody of a child, the trial court has a very broad discretion, looking always to the best interest of the child, and may award the child to one even though the other may not be an unfit person to exercise custody or had not otherwise lost the right to custody. . . Wrightson v. Wrightson, 266 Ga. 493, 494 (1) (467 SE2d 578) (1996) quoting Anderson v. Anderson, 240 Ga. 795 (2) (242 SE2d 593) (1978). In Mock, supra, we held that subsection 19-9-1 (a) (l)’s entitlement to custody provision, relied upon by the majority, is “overridden” by the rule that the right of custody depends upon the best interest of the child. “While the trial court may consider the conduct of the parties on the issue of custody, [cit.] the court ultimately must decide the custody question based on the best interest of the child.” (Citation omitted; emphasis supplied.) Mock, 258 Ga. 407. Because the majority’s language may mislead the bench and bar into believing that the status of the parents in regard to the divorce must be considered before the best interests of the children when determining custody, I can concur only in the judgment.