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When a Child Has Been Raised Primarily by a Grandparent, Can a Parent Be Awarded Custody?

(To learn more about grandparents' custody rights and gaining custody of a grandchild, please visits the Grandparents Rights section of our site by clicking here.)

When a child is born to two people who are not ready to be parents, the grandparents often step in to help raise the child. But what happens when a parent wants to have more of a role in the life of a child who has been primarily raised by a grandparent? How would a court decide whether the child should remain with the grandparent or start living with the parent? The Georgia Court of Appeals addressed this issue in the case of Bell v. Taylor, A15A1621, October 28, 2015 (Ga. App. 2015).

In that case, a child was born to unmarried parents in 2008. In 2011, the parents consented to the child's maternal grandmother being granted temporary guardianship of the child. The father, who was 20 years old when the child was born, had little to no involvement in the child's life for the first few years. He acknowledged that, during that time he used drugs and alcohol and was "just young and wild and partied a lot." Eventually, as the father matured, he straightened out his life and wanted to be more involved in the life of his son.

In 2013, the father filed a petition seeking legitimation and custody of the child. The maternal grandmother responded to the father's petition, but the child's mother did not. The court granted legitimation and legally changed the child's last name to the father's last name. The court also granted the father visitation with the child on a temporary basis. The question for the court to decide at the final hearing was whether the child should continue to live with the grandmother or go and live primarily with the father.

At the final hearing the father's parents testified that he had had problems when he was younger but that during the past two years he had been clean and sober, maintained a job, and had a stable home with a wife and two stepchildren. A family friend testified that he had seen the father go from not being worth a "plug nickel" to being mature, grown up, in a good marriage, looking after his stepchildren, and able to provide a "solid life" for the child.

The child, who had just turned 6 years old at the time of the final hearing, had lived most of his life with the maternal grandmother. The grandmother testified that the child had some difficulty when the father first got visitation rights, but that she encouraged the father to be involved in the child's life and that eventually the visitation started "going pretty good." The grandmother presented witnesses who testified that the child was happy, well taken-care-of and doing great living with her and visiting with the father every other weekend.

After all of the evidence was presented, the judge said that he was confident that both parties could take good care of the child, but decided that it would be harmful to the child to remove him from the home of the grandmother where he had lived most of his life and awarded primary custody to the grandmother.

The father appealed the decision and argued that the judge had misapplied the law. The legal standard for deciding custody actions between a parent and a grandparent is found at O.C.G.A. 19-7-1 (b.1) which provides, in pertinent part:

There shall be a rebuttable presumption that it is in the best interest of the child or children for custody to be awarded to the parent or parents of such child or children, but this presumption may be overcome by a showing that an award of custody to such third party is in the best interest of the child or children. The sole issue for determination in any such case shall be what is in the best interest of the child or children.

To rebut the presumption set forth in O.C.G.A. 19-7-1 (b.1), the third party must show that parental custody would cause physical or significant long-term emotional harm, not merely social or economic disadvantage. Strickland v. Strickland, 330 Ga. App. 879 (2015); Clark v. Wade, 273 Ga. 587, 598 (2001); see also Harris v. Snelgrove, 290 Ga. 181, 182 (2011). "[A] change in home and school will often be difficult for a child, but some level of stress and discomfort may be warranted when the goal is reunification of the child with the parent." Clark v. Wade, supra at 598.

In determining whether reuniting a child to the parent would harm the child, the trial court must consider the following factors:

(1) who are the past and present caretakers of the child; (2) with whom has the child formed psychological bonds and how strong are those bonds; (3) have the competing parties evidenced interest in, and contact with, the child over time; and (4) does the child have unique medical or psychological needs that one party is better able to meet.

Clark v. Wade, supra at 598-599.

On appeal, the father argued that because the trial court did not specifically find that any physical or significant, long-term psychological harm would have resulted if the child were to live primarily with him, he should have been granted primary custody. The appellate court agreed and held that "the type of harm noted by the trial court falls within that level of stress and discomfort that is an acceptable price for reuniting a child with a parent, and is insufficient to infringe the fiercely guarded right of a parent to have legal and physical custody of his or her child." The appellate court sent the case back to the trial court with the instruction to award custody to the father.


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