As previously discussed, Georgia law since 2001 has required a grandparent (or certain other designated relatives) seeking custody of a child against a parent to prove by clear and convincing evidence that the child will suffer physical harm or significant, long-term emotional harm if custody were awarded to the parent. (1) Numerous appellate decisions over the ensuing years have assessed trial judges’ applications of that standard to the evidence before them. This series of articles surveys those appellate decisions to ascertain how trial judges and appellate courts have interpreted and applied the “clear and convincing” evidence standard in grandparent custody cases.

Before specific grandparent-versus-parent custody cases can be discussed, the general rules governing the interpretation and application of the harm requirement and a grandparent’s burden of proof need to be stated. This Part 1 accordingly addresses those general rules. Subsequent parts will summarize the evidence and rulings in particular cases over the years.

Regarding the meaning of “clear and convincing evidence,” caselaw has broadly defined it as “an intermediate standard of proof, greater than ‘the preponderance of evidence,’ but less than the ‘beyond a reasonable doubt’ standard applicable in criminal cases, and, in rare instances, certain civil cases.”(2) In the context of grandparent-versus-parent custody cases, the Georgia Court of Appeals has noted that, while clear and convincing evidence represents a heightened standard of proof, it does not require a grandparent “to come forward with unequivocal or undisputed evidence that custody with the [parent] would result in harm to the child.”(3)

Regarding the level of certainty of harm a grandparent must prove, the Georgia Supreme Court’s original statement of the rule required proof that a child “will suffer” harm in parental custody or that parental custody “would harm” the child.(4) The plain meaning of “will” and “would” suggests that harm to a child necessarily will result from an award of custody to a parent. At least one appellate decision has emphasized that distinction, confirming that the Clark v. Wade standard requires a showing by the third party that a child “will suffer” harm, not that harm “may” result.(5) Confusingly though, some appellate decisions have employed less strict terminology in vacating grandparent custody determinations because the trial court failed to make factual findings that the biological parent was unfit or that the child “may suffer” physical or long-term emotional harm in the custody of the biological parent.(6)

The “significant, long-term emotional harm” a grandparent must prove to remove children from the custody of their parents “does not mean merely social or economic disadvantages. Nor does emotional harm refer to the stress and discomfort that naturally accompanies a change in home and/or school... Thus, in determining if a child will suffer harm in the custody of her parent, a court should focus on the parent's ability to provide for the children in a manner sufficient to preclude the need for an entity of the government to intervene and separate the children from the parent, and a court is not permitted to terminate a parent's natural right to custody merely because it believes that the child might have better financial, educational, or moral advantages elsewhere. In other words, the parent's ability to raise her children is not to be compared to the fitness of a third person.”(7)

In determining whether harm exists sufficient to overcome the statutory presumption favoring parental custody, a judge “should consider a variety of factors that go beyond the parent’s biological connection or present fitness to encompass the child’s own needs.”(8) Those factors include: who are the past and present caretakers of the child; with whom has the child formed psychological bonds and how strong are those bonds; have the competing parties evidenced interest in, and contact with, the child over time; and does the child have unique medical or psychological needs that one party is better able to meet?(9)

A grandparent’s evidence of prior acts can support a conclusion that children would suffer harm if custody were awarded to their parent. Nonetheless, a trial court must consider all the circumstances of the case in determining whether an award of custody to the grandparent is in the children’s best interest.(10)

Lastly, when reviewing a trial court’s order granting or denying a grandparent’s petition for custody of a child, an appellate court must view the evidence in the light most favorable to the trial court’s decision. An appellate court will not set aside a trial court’s factual findings if there is any evidence to support them, and it must defer to the trial court’s determinations of witness credibility.(11) It is the province of the trial court, not the appellate court, to resolve conflicts in the evidence and to determine witness credibility.(12) The legal conclusions a trial court draws from its factual findings will be reviewed de novo, however.(13)

(1) Clark v. Wade, 273 Ga. 587, 598-599, 544 S.E.2d 99 (2001). While this legal standard also governs certain other designated relatives seeking custody of children from parents, the vast majority of third-party custody cases against parents involve grandparents. Therefore, for ease of reference, this and the remaining articles in this series will group all applicable relatives’ custody rights under the label of “grandparent” custody. (2) Clarke v. Cotton, 263 Ga. 861, 440 S.E.2d 165 (1994). (3) Hayle v. Ingram, 363 Ga.App. 657, 663, 872 S.E.2d 310 (2022). (4) Wade, supra, 273 Ga. at 598. (5) Floyd v. Gibson, 337 Ga.App. 474, 478, 788 S.E.2d 84 (2016). (6) See, e.g., Steedley v. Gilbreth, 352 Ga. App. 179, 183, 834 S.E.2d 301 (2019), citing Galtieri v. O’Dell, 295 Ga. App. 797, 798-799, 673 S.E.2d 300 (2009). (7) Mashburn v. Mashburn, 353 Ga.App. 31, 43, 836 S.E.2d 131 (2019) (citations omitted). (8) Clark, supra, 273 Ga. at 598-599. (9) Id. (10) Floyd, supra, 337 Ga.App. at 477-478. (11) Id., 353 Ga. App. at 32, citing Strickland v. Strickland, 298 Ga. 630, 633(1), 783 S.E.2d 606 (2016), and Saravia v. Mendoza, 303 Ga. App. 758, 758, 695 S.E.2d 47 (2010). (12) Hayle, supra, 363 Ga.App. at 663. (13) Mashburn, supra, 353 Ga.App. at 43, citing Strickland, supra, and Saravia, supra.