Georgia law grants no prima-facie right to the custody of a child in the father or mother, in a battle between two parents.(1) Rather, the judge hearing the issue of custody must “exercise discretion to look to and determine solely what is for the best interest of the child and what will best promote the child’s welfare and happiness and to make his or her award accordingly.”(2) That rule, however, seemingly applies only where both parents are fit and proper persons to have custody of their minor child.(3) A court cannot award custody of a child to a person unfit to exercise custody.(4) But what renders a parent “unfit” to have custody under Georgia law? This article attempts to answer that question.

First, the same statutory grounds for termination of parental rights may establish parental unfitness as well.(5) Thus, for instance, parental unfitness could be found where a parent fails to provide necessaries for a child or abandons the child, or where a parent engages in cruel treatment of a child.(6)

Beyond the statutory factors for terminating parental rights, parental unfitness may be found if “a parent is inflicted either mentally or physically to the extent that he cannot provide any care for the child; … suffers from a serious and contagious disease which would endanger the child; … [has] criminal tendencies making it hazardous to expose a child to him; or … [has] other such disqualifications not coming within those [statutory] sections.”(7)

Although typically utilized in juvenile court deprivation/dependency actions, the concept that an unfit parent includes a person who suffers from an untreatable mental illness from which he will not recover, which results in abuse or neglect of a child, logically could apply to a custody dispute between parents as well.(8)

Alcoholism or drug addiction which caused cruel treatment of a spouse and child has been deemed relevant to a parent’s custodial fitness.(9) Even without resulting cruel treatment, courts have considered a parent’s use or history of abuse of alcohol or drugs in determining parental misconduct or inability to care for a child.(10)

A parent’s status as a prisoner on parole at the time of a custody hearing makes that parent unfit to care for a child. To be clear though, the Supreme Court of Georgia made that pronouncement in a dispute between a surviving father and the maternal grandparents, under circumstances where the father had been convicted of the involuntary manslaughter of his wife and had been released on parole.(11) Whether the Court intended its stated holding to apply only to the killing of one spouse by another, or instead to apply to any crime committed by a parent which resulted in imprisonment and parole, seemed somewhat unclear. Fortunately, the Georgia Court of Appeals may have resolved the uncertainty when it held that a trial court, in determining parental fitness, could consider any felony conviction and imprisonment of a parent which has a demonstrable negative effect on the quality of the parent-child relationship.(12)

Some support exists for the proposition that a court can deem a parent unfit to have custody simply because the parent committed adultery or had a sexual relationship outside of marriage.(13) More modern case law though has held that a parent’s relationship with another person, sexual or otherwise, does not render the parent unfit to have custody unless that relationship resulted in abuse or neglect of the child or left the parent incapable of caring for the child.(14)

(1) O.C.G.A. § 19-9-3(a)(1). (2) O.C.G.A. § 19-9-3(a)(2). (3) See Powell v. Powell, 277 Ga. 878, 878-879, 596 S.E.2d 616 (2004); Dorminy v. Dorminy, 242 Ga. 326, 249 S.E.2d 49 (1978). (4) Knox v. Knox, 226 Ga. 619, 620(2), 176 S.E.2d 712 (1970), citing Hill v. Rivers, 200 Ga. 354, 363, 37 S.E.2d 386 (1946). (5) See O.C.G.A. § 19-7-1(b); and Perkins v. Courson, 219 Ga. 611, 623, 135 S.E.2d 388 (1964). (6) O.C.G.A. § 19-7-1(b)(3) and (6). (7) Perkins, supra, 219 Ga. at 624. (8) See In re R.L.Y., 181 Ga.App. 14, 14-15, 351 S.E.2d 243 (1986). (9) Weaver v. Weaver, 238 Ga. 101, 230 S.E.2d 886 (1976). (10) Turner v. Wright, 217 Ga.App. 368, 370(2), 457 S.E.2d 575 (1995). (11) Yancey v. Watson, 217 Ga. 215, 218, 121 S.E.2d 772 (1961). (12) Turner, supra, 238 Ga. at 370(2). (13) See, Godfrey v. Godfrey, 239 Ga. 707, 709, 238 S.E.2d 378 (1977) (Hall, J., dissenting); Collier v. Collier, 228 Ga. 38(1), 183 S.E.2d 769 (1971); (14) Saxon v. Saxon, 207 Ga.App. 471, 428 S.E.2d 376 (1993).