Tyner v. Tyner , 170 Ga. App. 877 ( 1984 )

Banke, Presiding Judge.

The appellees sued to obtain custody of their three grandchildren from the mother, who is their former daughter-in-law. Legal custody of the children had been awarded to the mother at the time of her divorce from the father; however, she had allowed the appellees to have physical custody for a period of several years. The maternal grandparents moved to be allowed to intervene to seek visitation privileges, and this motion was granted by the trial court.

Following an evidentiary hearing, the trial court awarded custody to the appellees and granted visitation privileges to the mother; however, the court did not rule on the maternal grandparents’ request for visitation privileges. The latter joined with the mother in applying to this court for a discretionary appeal, and we granted the application. Held:

Decided April 24, 1984 — Rehearing denied May 14, 1984 — Thomas M. Strickland, for appellants. Edward D. Tolley, for appellees.

1. The trial court’s finding that the mother relinquished her right to custody by allowing the appellees to have physical custody of the children over a period of several years and by failing during that period of time to provide necessary support for them was supported by clear and convincing evidence. Accord Durden v. Barron, 244 Ga. 277 (260 SE2d 17) (1979); Triplett v. Elder, 234 Ga. 243 (215 SE2d 247) (1975). See generally OCGA § 19-7-1 (b) (1, 3); Blackburn v. Blackburn, 249 Ga. 689, 692 (292 SE2d 821) (1982).

2. The court erred, however, in failing to rule on the request by the maternal grandparents for visitation privileges. See generally OCGA § 19-7-3. The judgment is accordingly affirmed with direction that a ruling be made on that request in accordance with the statute.

Judgment affirmed with direction.

Pope and Benham, JJ., concur.