The Georgia Court of Appeals reversed an award of child custody to a maternal grandmother in its June 2016 decision in Floyd v. Gibson.(1) There, a biological father sought legitimation and custody of three minor children who had lived with their maternal grandmother since their mother suffered a drug overdose. The father was undergoing methadone treatment while living at his mother’s house. He was employed and had been paying child support. Ultimately, the trial court found “it likely that future physical and mental harm may be done to the children if placed in the father’s custody.”(2) In reversing the trial court’s permanent custody order, the Court of Appeals rejected the trial court’s tentative findings of future physical and mental harm. The appellate Court held that the trial court was required to conduct a substantive analysis of the Clark v. Wade factors and determine whether the children would suffer physical harm or significant, long-term emotional harm by having custody awarded to their father, rather than merely to state the “magic words” of Clark v. Wade and conclude that physical or emotional harm may result from father’s custody.(3)

The Court of Appeals reversed an award of child custody to paternal grandparents in its May 2018 decision in Jewell v. McGinnis.(4) In a custody battle with a minor child’s mother, the trial court awarded primary physical custody to the grandparents based primarily on four areas of concern. First, an associate professional counselor’s testimony contrasted the child’s strong bond with her grandparents, and stability living with them and attending school in their district, versus her apprehension about her mother and negatives resulting from a removal from her school and current counseling. Second, the grandparents presented evidence that mother had posed for sexually provocative advertising photos of herself with firearms and had lived with her boyfriend in a meretricious relationship before marrying him. Third, the grandparents showed that the child once had returned from mother’s home with cuts and bruises purportedly obtained while escorting a lost dog. Lastly, the grandparents showed that the child had gained 15 to 20 pounds during the pendency of the litigation.(5) In reversing the trial court, the Court of Appeals found each of those four concerns, and the evidence which supported them, lacking. The appellate Court first noted that the associate professional counselor had offered no evidence that the child would experience physical or emotional harm in the mother’s home. Instead, the counselor had admitted to uncertainty whether the child would suffer the same signs of apprehension if she were to live with her mother full time, and she did not opine that mother was an unfit parent. Moreover, the counselor could not say that mother was unable to provide stability for the child, and the trial court could not lawfully compare the greater level of stability the child had with the grandparents against the lesser stability she would realize with her mother. Nor could the trial court lawfully consider the negatives from a change of school and counselor absent evidence that those changes would subject the child to physical harm or significant, long-term emotional harm. The appellate Court likewise rejected the trial court’s concerns and supporting evidence regarding the mother’s provocative photographs and meretricious relationship, because the trial court had no evidence that the child had seen the photographs or suffered any distress or harm related to them, and the court similarly lacked any evidence that the child had been negatively affected by the mother’s meretricious relationship in any way. Regarding the child’s weight gain, the Court of Appeals noted the absence of testimony identifying the cause, or showing the child’s current height and weight, or evidencing whether the weight gain was causing physical or emotional harm. Lastly, regarding the cuts and bruises suffered by the child, the Court of Appeals found no evidence that the child was unsupervised at the time she received the minor injuries and no evidence that the child had experienced any other injuries while in the mother’s care or that the mother otherwise had left the child unsupervised.(6)

The Court of Appeals reversed an award of child custody to paternal grandparents in its May 2018 decision in Fyffe v. Caine.(7) There, the divorced mother of a minor child took custody after her ex-spouse with primary custody died; but subsequently, the paternal grandparents successfully petitioned for custody. In awarding custody to the grandparents, the trial court relied on evidence that mother cursed in front of the child and on social media, including calling the grandparents profane names. Mother twice put the child “on restriction” and took away her cell phone as discipline. Mother limited visitation with the grandparents – one time because the child was “on restriction.” Mother also received a speeding ticket while the child was in the car.(8) Additional findings recited mother’s failure to make child support payments to the father after their divorce and failure to exercise many of her court-awarded visitation opportunities, including one occasion where the disappointed child became visibly upset and tearful. Lastly, the trial court found that mother had a long history of questionable and sometimes immoral sexual conduct, with relationships that were open and not hidden from the child, including with violent men. Mother herself had engaged in prior acts of violence, including against the mother of a former boyfriend. (9) On appeal, the Court of Appeals held that none of those findings supported a conclusion that the child would suffer significant long-term emotional harm if left in mother’s custody. The appellate Court noted the testimony of a court-appointed guardian ad litem that mother’s profane language did not bother him and that she had done a fine job raising the child, and the lack of any evidence from the grandparents that a parent’s use of profanity can result in emotional harm to a child. The Court went so far as to state that, “[i]ndeed, if merely using profanity can cause a parent to lose custody, the majority of parents might be in danger of losing custody of their children.”(10) Regarding the trial court’s findings regarding mother’s speeding ticket and disciplinary methods, the Court held that one speeding ticket and the mother’s decision to discipline her pre-teen child by placing her on restriction and taking away her phone could not be considered harmful without additional evidence of negative circumstances surrounding the ticket or that the discipline resulted in harm to the child.(11) Regarding the mother’s failure to pay child support and her visitation lapses, the Court noted: the absence of any finding that the lack of child support had caused any harm to the child; the grandparents’ failure to show that the child had been deprived in any way during the 14-month period the mother had custody; and the evidence that mother took custody of the child after the father’s death and was able to support the child and provide for her emotional needs. The Court also pointed out that one occasion of the child growing distressed at mother’s missed visitation hardly supported a finding of significant, long-term emotional harm, especially in the absence of any evidence of upset or disagreement in the relationship between mother and child during the period mother had custody.(12) As to the trial court’s findings on mother’s sexual relationships and violent encounters, the appellate Court held that a trial judge could not deny custody or visitation to a parent due to her cohabitation with another, absent evidence that the child was harmed or exposed to inappropriate conduct, and noted the trial court’s failure to make any such findings. The Court further noted the lack of any findings that the child had knowledge of any acts of violence by men or that any of the acts had occurred in the child’s presence or against her. In fact, none of the alleged acts of violence had occurred during the 14 months in which mother had custody.(13) Lastly, the Court of Appeals rejected the trial court’s contrasting findings regarding the grandparents’ past role and relationship with the child and their stability, deeming those findings irrelevant to a consideration of whether the child is likely to suffer long-term emotional harm in mother’s custody.(14)

(1) Floyd v. Gibson, 337 Ga.App. 474, 788 S.E.2d 84 (2016). (2) Id., 337 Ga.App. at 476. (3) Id., 337 Ga.App. at 478 . (4) Jewell v. McGinnis, 346 Ga.App. 733, 816 S.E.2d 683 (2018). (5) Id., 346 Ga.App. at 735. (6) Id., 346 Ga.App. at. 737-739. (7) Fyffe v. Cain, 353 Ga.App. 130, 836 S.E.2d 602 (2019) (physical precedent). (8) Id., 353 Ga.App. at 132. (9) Id., 353 Ga.App. at 133-135. (10) Id., 353 Ga.App. at 132. (11) Id. (12) Id., 353 Ga.App. at 133-134. (13) Id., 353 Ga.App. at 134-136. (14) Id., 353 Ga.App. at 136.

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