In two consolidated child custody disputes, maternal grandparents who had been responsible for the child's daily care challenged the trial court's award of custody to the noncustodial fathers. In both cases, the trial courts found 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 Georgia's governing statute, OCGA § 19-7-1 (b.1), as unconstitutional. One court found the standard to be "constitutionally insufficient" and the other that it failed to articulate any standard and allowed the fact finder to substitute his or her 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.
The statute in question 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. However, there is a rebuttable presumption that parental custody is always in the child''s best interest. OCGA § 19-7-1 governs custody disputes between a biological parent and a limited number of third parties who are related to the child, including a grandparent, aunt or uncle, great aunt or uncle, sibling, or adoptive parent.
The Georgia Supreme Court reverses the trial courts, finding that the "best-interest-of-the-child" standard in OCGA § 19-7-1 is constitutional when applied to custody disputes between a noncustodial parent and third party. The court concludes that 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. The court also compares the present cases to grandparent visitation cases, including Troxel v. Granville (530 U.S. 57 (120 S.C. 2054, 147 L.Ed.2d 49) (2000)), and concludes that 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. In addition, that court points out that unlike the Washington statute that was at issue in Troxel, Georgia's expressly limits third parties who may seek custody to a specific list of the child''s closest relatives, and it defers to the fit parent''s decision on custody by establishing a rebuttable presumption in favor of parental custody. The court goes on to provide detailed guidance to courts in determining whether an award of custody is in the best intrests of the child.
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