The Georgia Court of Appeals affirmed an award of child custody to maternal grandparents in its March 2002 decision in Burke v. King.(1) There, the divorced father of a minor child filed a petition for a writ of habeas corpus after his former wife – who had custody of the child – died and her sister with whom the child was living refused to give custody to the father. Rejecting the father’s petition, the trial court instead granted the maternal aunt’s petition for sole legal and physical custody. The trial court expressly declined to find that father was an unfit parent but nonetheless concluded that the child “will suffer psychological and emotional harm if custody is granted” to the father, based on findings that: the father had failed to maintain reasonable contact with the child; the child had developed a close bond with the aunt; the father had physically abused the mother and their other child in the presence of the child; and father had verbally abused the child over the telephone.(2) In reversing the trial court, the Court of Appeals cited the absence of any evidence that the child would sustain any physical harm in father’s custody and emphasized the lack of a finding by the trial court that the child would suffer significant, long-term emotional harm. Although evidence had shown that the child ended telephone conversations with his father by hanging up or crying, the trial court gave no explanation as to precisely what had upset the child. Moreover, the emotional abuse the trial court relied on apparently consisted of father’s injudicious comparisons between his former spouse and his present wife. The appellate court deemed insufficient the trial court’s resulting, conclusory statement that the child will suffer psychological and emotional harm if custody were granted to father, because the trial court failed to state that the child would suffer “significant, long-term emotional harm,” and because it remained unclear whether the anticipated psychological harm to the child would be attributable to the inherent stress of reunification with a parent after the death of the other parent (which would not justify loss of parental custody), or would be attributable to some type of emotional abuse inflicted by father.(3)

The Court of Appeals affirmed an award of child custody to maternal grandparents in its September 2011 decision in Interest of D.W.(4) There, the married parents of two minor children temporarily lost custody to the grandparents through DFCS intervention and permanently lost custody to them under an order entered on their petition. Based on trial testimony and evidence from special education teachers and therapists who had worked with the children, from the visitation supervisors who had overseen the parents’ supervised visitation during the period in which the grandparents had temporary custody, from the court-appointed guardian ad litem, from the parents, and from the grandparents, the trial court found clear and convincing evidence that the parents were unfit to care for the children due to their lack of understanding of the children’s special needs and their inability to meet those needs, and that parental custody would harm the children.(5) The Court of Appeals found the trial court’s findings supported by the record. Specifically, evidence showed that one child suffered from autism which required constant supervision and assistance throughout the day, while the other child continued to suffer from developmental and speech-language impairments and had behavioral problems which made him difficult to manage. The grandparents’ evidence and the parents’ own admissions showed that the parents were in denial regarding their children’s disabilities and special needs, had consistently failed to attend to those special needs, and had failed to protect and promote the children’s physical well-being. Not only did the guardian ad litem and a therapist who had conducted sessions with the parents communicate grave concerns regarding the parents’ ability to take care of the children on their own, but the mother herself admitted to the grandmother her own doubts about handling the children alone during the day.(6)

The Court of Appeals affirmed an award of child custody to paternal grandparents in its June 2013 decision in Mauldin v. Mauldin.(7) There, the mother of a minor child had obtained primary custody following her divorce. After the father filed a petition to modify parenting time and child support, both sets of grandparents intervened, and the trial court granted primary physical custody to the paternal grandparents. The trial court’s order found clear and convincing evidence that the statutory presumption favoring parental custody had been rebutted, thereby necessarily finding that the mother was not a fit person entitled to custody. In support of that finding, the trial court found that the child had significant behavioral and emotional issues – many of which resulted from the extremely high conflict between the mother and father – which mother remained in denial of and refused to address. Evidence showed that mother had alienated the child from the father and his family. Evidence further showed that neither parent followed professional advice on behavior modification techniques for the child, and the child’s behavior continued to deteriorate while in mother’s custody. Moreover, mental health experts expressed grave concern for the child’s future behavior and mental health if the child did not receive consistent and intensive therapy.(8) While acknowledging Clark v. Wade’s requirement for a grandparent to show resulting harm in parental custody, the Court of Appeals focused instead on the findings of mother’s parental unfitness and found those findings supported by the record.(9) Yet, even without the appellate Court’s explicit holding of likely harm, it seems apparent that the evidence of parental unfitness equally would establish clear and convincing evidence that the requisite physical or emotional harm to the child would result from mother’s custody.

(1) Burke v. King, 254 Ga.App. 351, 562 S.E.2d 271 (2002). (2) Id., 254 Ga.App. at 351-352. (3) Id., 254 Ga.App. at 354. (4) Interest of D.W., 311 Ga.App. 680, 716 S.E.2d 785 (2011). (5) Id., 311 Ga.App. at 684-686. (6) Id., 311 Ga.App. at 687-688. (7) Mauldin v. Mauldin, 322 Ga.App. 507, 745 S.E.2d 754 (2013) (physical precedent). (8) Id., 322 Ga.App. at 513-517. (9) Id., 322 Ga.App. at 511-513.