Guest v. Williams , 240 Ga. 316 ( 1977 )

240 Ga. 316 (1977) 240 S.E.2d 705

GUEST
v.
WILLIAMS.

32940.

Supreme Court of Georgia.

Argued November 16, 1977. Decided December 5, 1977.

Ruth W. Padgett, for appellant.

G. Hughel Harrison, Gerald Davidson, Jr., for appellee.

HALL, Justice.

Appellee sued his former wife to have custody of their minor child changed from her to either him or his parents, with whom he was living. The court awarded custody to the paternal grandparents.

1. Since custody was given to third persons, rather than one of the natural parents, the standard of proof to be applied is that of clear and convincing evidence. Childs v. Childs, 237 Ga. 177 (227 SE2d 49) (1976); 239 Ga. 304 (236 SE2d 646) (1977). We find that there was sufficient evidence.

Appellant complains of the lack of evidence concerning the father's unfitness. Even assuming she has standing to raise this issue, it is clear that appellee consented to the award of custody to his parents, since he requested that as alternative relief in his complaint. In this situation there was no need for proof of his unfitness. The trial court has the power to award custody to third persons (Code Ann. § 50-121), and in this situation it had the discretion to award custody to the grandparents. Code Ann. §§ 30-127, 50-121, 74-107; Yde v. Yde, 231 Ga. 506 (202 SE2d 423) (1973).

2. Appellant's second enumeration of error deals with the sufficiency of the evidence to support the findings of fact and conclusions of law, and their correctness. This was dealt with in Division 1.

She also complains that there were no conclusions of law at all. As we read the order, the necessary conclusions of law were set out. We find no reversible error on the grounds enumerated.

Judgment affirmed. All the Justices concur.