Mathis v. Nicholson

244 Ga. 106 (1979) 259 S.E.2d 55

MATHIS
v.
NICHOLSON.

34987.

Supreme Court of Georgia.

Submitted June 8, 1979. Decided September 5, 1979.

F. Gregory Melton, for appellant.

McCamy, Minor, Phillips & Tuggle, Joseph T. Tuggle, Jr., for appellee.

JORDAN, Justice.

This is an appeal by the mother of two minor children from an order of the trial court denying her petition for habeas corpus and changing legal custody from her to the appellee paternal grandmother.

The trial court found "that the best interest and welfare of the minor children will be served by denying the writ of habeas corpus." This is not the proper standard to be used in a contest between a parent and a third party over the custody of a child. Higbee v. Tuck, 242 Ga. 376 (249 SE2d 62) (1978). "A parent may lose the right to custody only if one of the conditions specified in Code §§ 74-108, 74-109, and 74-110 is found to exist, or, in exceptional cases, if the parent is found to be unfit. [Cits.]" White v. Bryan, 236 Ga. 349 (223 SE2d 710) (1976). A finding of unfitness must be supported by clear and convincing evidence. Heath v. Martin, 225 Ga. 181 (2) (167 SE2d 153) (1969); Gazaway v. Brackett, 241 Ga. 127, 129 (244 SE2d 238) (1978).

The trial court in this case did not make a finding of unfitness of the appellant mother or that she had otherwise lost her parental rights under the above stated Code sections. Since the correct standard was not used, the judgment of the trial court will be vacated with direction that a new hearing be conducted on the permanent custody of the minor children. See Childs v. Childs, 237 Ga. 177 (227 SE2d 49) (1976).

Judgment vacated and remanded with direction. All the Justices concur.