Stills v. Johnson

Fletcher, Presiding Justice.

The issue presented by this petition for habeas corpus is the proper standard to be applied in a custody dispute between the paternal grandmother and the maternal uncle of the child, where neither relative is a parent as defined by Georgia law, and the child’s parent has transferred “parental power” to the grandmother pursuant to OCGA § 19-7-1 (b) (l).¹ We hold that, in accordance with the development of the law in this state, where two parties seek custody of a child, and neither is a parent of the child, custody is to be governed by the standard of best interest of the child. Because the trial court applied the fitness standard in this case in awarding custody of the child to the paternal grandmother, we reverse and remand this case for application of the proper standard.

The child at the center of this custody dispute was born in February 1994 to Cassandra Stills and Steven Brian Trainer. Stills and Trainer did not marry. A year and a half after the child’s birth, Trainer filed a petition to legitimate him which was unopposed by Cassandra, and the child’s birth certificate was subsequently changed to name Trainer as his father. There are no disputes regarding paternity or legitimation.

Days before the child’s birth Trainer was arrested in Georgia and charged with numerous felonies and misdemeanors. He was sentenced to two consecutive ten-year sentences and is currently incarcerated in Reidsville State Prison. Trainer has been incarcerated during the entire life of the child. For more than a year after the child’s birth, Cassandra visited Trainer in prison, taking the child with her. These visits ceased at some point in 1996 when the relationship between Cassandra and Trainer became strained.

Trainer testified during the custody hearing in this case that he had not made any financial contributions to the support of the child during the child’s lifetime and admitted that he had never telephoned or communicated with his son after Cassandra ceased bringing the child to the prison for visits. He conceded that he had not telephoned the child even after the court in this case granted him telephone visitation because he “didn’t get a chance to call.” Trainer additionally admitted that he had a lengthy criminal history, having been incarcerated in North Carolina for “a couple of weeks around 1983” and incarcerated in New Jersey following a burglary conviction in 1988.

Cassandra Stills died in August 1997, and the child went to live with Doris Stills, Cassandra’s mother. When Doris Stills petitioned the Houston County probate court for temporary letters of guardianship of the child, Steven Trainer was served and objected. Trainer thereafter executed a document purporting to relinquish custody and his parental power over the child² to his mother, appellee Gertrude Johnson, a New Jersey resident. His petition states that the transfer of custody and parental power is “temporary” until such time as he is released from prison. Trainer additionally filed a petition for change of physical custody against Doris Stills which the trial court construed as a petition for habeas corpus pursuant to OCGA §§ 9-14-1 and 9-14-2. Doris Stills died of cancer during the pendency of these proceedings, and appellant Terry Stills, Cassandra’s brother, was substituted as the party defendant. Terry Stills is married and is a resident of Texas. At the time of the custody hearing the child was living with Terry and his family.

Prior to his marriage, Terry shared an apartment with Cassandra in Atlanta for several years, including the time she was pregnant with the child at issue. Terry attended birthing classes with Cassandra and assisted in the labor room during the birth of the child. For approximately the first three years of the child’s life Terry lived with him and was involved in caring for him. He paid the rent of the shared apartment during Cassandra’s maternity leave, and sometimes paid for day care and necessities for the child. When the child was approximately three years old Cassandra moved from Atlanta to Columbus, Georgia to take another job. Thereafter Terry saw the child at least every other weekend, either in Columbus or at his mother’s home in Warner Robins.

Appellee Gertrude Johnson offered evidence that she intermittently spoke to Cassandra by telephone and occasionally sent presents to the child prior to this custody dispute. She admitted that she had not met the child prior to the institution of these custody proceedings although she had been in the Atlanta area a number of times during the child’s lifetime to visit another relative.

The dispute over the custody of this six-year-old child has been contentious. The record shows that after his mother’s death, Terry Stills took the child to Texas without permission of the court. It is not disputed that Gertrude Johnson, during court-permitted visitation, took the child to New Jersey in direct violation of a court order and was subsequently held in contempt for her actions.

The trial court concluded that upon the death of Cassandra Stills, the right to custody of the child vested in Steven Trainer pursuant to OCGA § 19-9-2. That code section provides “[u]pon the death of either parent, the survivor is entitled to custody of the child; provided, however, that the court, upon petition, may exercise discretion as to the custody of the child, looking solely to the child’s best interest and welfare” (Emphasis supplied.)

The trial court further concluded that because Trainer had made a valid transfer of his parental power by voluntary contract to his mother pursuant to OCGA § 19-7-1 (b) (1), Gertrude Johnson had acquired a superior legal right to custody of the child, and that the burden shifted to Terry Stills to show that she was not a fit or proper person to obtain custody of the child. The trial court rejected Terry Stills’s argument that the proper standard to be applied was the “best interest” of the child. Examining the evidence the court found that both parties were fit to be custodians of the child and that Terry Stills had failed to demonstrate by clear and convincing evidence that Johnson was not a fit custodian. The court thereafter awarded custody of the child to Gertrude Johnson.

This Court granted Terry Stills’s application to appeal the grant of the petition for habeas corpus.³

1. Terry Stills argues that this case is controlled by the best interest of the child standard contained in OCGA § 19-7-1 (b.l). That code section provides:

Notwithstanding subsections (a) and (b) of this Code section or any other law to the contrary, in any action involving the custody of a child between the parents or either parent and a third party limited to grandparent, aunt, uncle, great aunt, great uncle, sibling or adoptive parent, parental power may be lost by the parent, parents, or any other person if the court hearing the issue of custody, in the exercise of its sound discretion and taking into consideration all the circumstances of the case, determines that an award of custody to such third party is for the best interest of the child or children and will best promote their welfare and happiness. 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.

It can readily be seen that the General Assembly intended for this code section to apply only to custody disputes between “the parents or either parent” of the child and a specified group of relatives. Resolution of such custody disputes is to be governed by the best interest of the child. Neither party in this case is a “parent” as defined by Georgia law.⁴ By its express terms OCGA § 19-7-1 (b.l) does not apply in a custody dispute between a grandmother and an uncle, and therefore its provisions do not govern the outcome of this case. We therefore decline to address the parties’ and the dissent’s arguments regarding the constitutionality of OCGA § 19-7-1 (b.l). The constitutionality of that code section was not raised by the parties below and is not present in this appeal. This opinion should not be read as intimating any direction with regard to that issue.

2. In reaching its decision the trial court relied on two cases, Shope v. Singleton⁵ and Durden v. Johnson.⁶

In Shope v. Singleton the child’s father gave “custody and control” of the child to a grandmother. Thereafter the father died. With the grandmother’s permission, the child went to live with neighbors. The grandmother subsequently filed a petition for habeas corpus against the neighbors, seeking return of the child. This Court concluded that the grandmother had a superior legal right to the child by virtue of the father’s voluntary agreement, and absent a showing of the grandmother’s unfitness, the grandmother was entitled to custody of the child. Shope is but one of many in a line of cases in which the courts applied a fitness standard to resolve a custody dispute between non-parents, one of whom had been given the child by a parent.

The issue before us is whether, under the rule set out in Shope, a biological parent’s voluntary release of parental power to his mother gave her a “superior legal right” to custody which cannot be overcome absent a showing of her unfitness. In resolving this question we point out that this case does not involve an intact family; it does not involve a parent with physical custody; and it does not even involve a parent who has provided financial or emotional support for his child.

Nor is either party to this action a parent or legal custodian of the child. As we have previously noted, the grandmother is not a “parent” of the child within the meaning of OCGA §§ 19-8-1 or 19-11-3 (7). She is not a “legal custodian” of the child pursuant to OCGA §§ 19-9-22 (2) or 15-11-43.⁷ These code sections provide that a legal custodian is one who has been given legal custody by court order. In Alvarez v. Sills,⁸ this Court held that under the strict terms of OCGA § 19-9-22 (2), legal custody of a child cannot be conferred by agreement, but may only be conferred by court order. Under the law which has developed since the rule set out in Shope, an agreement transferring parental power pursuant to OCGA § 19-7-1 (b) (1) may be considered as a factor by the court in a custody proceeding.⁹ However, unless incorporated into a court order, that agreement does not convey legal custody.¹⁰

The voluntary agreement in this case was not an award of legal custody by a court order. It did not, as a matter of law, make Gertrude Johnson a “parent” of the child or vest in her a superior legal right to custody. Taking into consideration the development of the law since the rule in Shope, we hold that where neither party seeking custody is a parent as defined by Georgia law, a determination of custody is to be made according to the best interest of the child¹¹ even where there exists an agreement by which a parent of the child has transferred parental power to one of the parties seeking custody. The parent’s wish as expressed by the transfer of parental power is, of course, an important factor to which the court shall give substantial weight in determining the best interest of the child.

The rule discussed in Shope deprives a child whose parent has voluntarily transferred parental power to a third party of having his or her best interest dictate the outcome of a subsequent custody dispute with another non-parent. That rule evolved during an era when a child had no separate legal status and was considered to be virtually a property interest of the parents. A parent with sole custodial rights was free to make a “gift” of the child to a third party with little deference given to whether this transfer was in the best interests of the child.¹² In any subsequent custody dispute between the recipient of the “gift” of the child and a third party, the focus was on the fitness of the recipient of the “gift” rather than on the child. The rationale underlying this rule is inconsistent with contemporary recognition of children as individuals whose best interests, welfare and happiness are entitled to protection.

Further use of the fitness rule in a case where the parent has exercised poor judgment in selection of the party to whom parental power is transferred places the child at the mercy of a stringent requirement that the recipient of that power be shown to be “unfit” before custody can be changed. Application of the best interest standard allows the court making a custody determination to consider a multitude of factors, including the fitness of the potential custodian, which afford more protection for the child.

As between parents seeking custody, the best interest standard is applied.¹³ In a custody dispute between two non-parents, the standard must also be the best interest of the child. Otherwise the law would protect a child more in a custody dispute involving his or her own parent than in one involving non-parents. To the extent that Shope v. Singleton, its progeny and its predecessors suggest that different standards should apply, they are overruled.

Durden v. Johnson,¹⁴, also relied on by the trial court, involved a custody battle between a parent and the aunt to whom that parent had transferred parental power. It is inapplicable to the custody dispute between these parties who are neither parents nor legal custodians of the child.

The purpose of the standard we now adopt is to ensure that children are treated fairly as individuals and that a determination of custody as between non-parents will focus on their best interests, welfare and happiness. Contrary to the dissent’s position, this standard does-not impinge on the interests of parents in matters involving the custody and control of their children. Nor does it undermine the choice of a custodial parent who relinquishes parental power to a third person. In any subsequent custody dispute the parent’s choice will be given substantial weight by the courts in determining the best interest of the child.

The dissent would adopt a standard that a “parent’s selection of a custodian or guardian must control unless the child would be harmed by doing so.”¹⁵ However, such a standard has never been applied to custody disputes. It has only been used to determine the constitutionality of the Georgia Grandparent Visitation Statute,¹⁶ which is not at issue in this case.

3. We note that there remains pending a petition filed by Terry Stills in the juvenile court to terminate the parental rights of Steven Trainer. Should the juvenile court conclude that in accordance with the standards set forth in OCGA § 15-11-81 there is clear and convincing evidence of Steven Trainer’s inability or failure to render proper parental care to the child, and that it would be in the best interest of the child to terminate Steven Trainer’s parental rights, then Trainer’s attempt to relinquish his parental power to his mother by voluntary contract would be of no effect.¹⁷ On remand, the trial court should first resolve the termination proceeding before finally adjudicating the custody issue.

Pursuant to OCGA § 15-11-81 (b) (4) (B) (iii), a court is authorized to consider in termination proceedings the “[c]onviction of the parent of a felony and imprisonment therefor which has a demonstrable negative effect on the quality of the parent-child relationship.” While a parent’s incarceration does not always compel the termination of parental rights, it can support a termination where there are sufficient aggravating circumstances present.¹⁸ These aggravating circumstances may include a history of incarcerations for repeated criminal offenses and a determination that it is likely such criminal history will continue upon release.¹⁹ Other factors which may be considered by the court in aggravation include whether the incarcerated parent has made an effort to communicate with the child and, despite imprisonment, maintain a parental bond in a “meaningful, supportive and parental manner.”²⁰ An incarcerated parent’s claim that parole is a future possibility at which time he or she will be able to care for the child is “based entirely on conjecture.”²¹

For the foregoing reasons, the judgment in this case is reversed and the case is remanded for proceedings consistent with this decision.

Judgment reversed and case remanded.

All the Justices concur, except Sears, Carley and Hines, JJ, who dissent.

1 OCGA § 19-7-1 (b) (1) provides, in pertinent part, “parental power shall be lost by: (1) voluntary contract releasing the right to a third person. . . .”

2 See OCGA § 19-7-1 (b) (1).

3 See Constitution of the State of Georgia of 1983, Art. VI, Sec. VI, Par. Ill (4); Johnson v. Smith, 251 Ga. 1 (302 SE2d 542) (1983).

4 OCGA § 19-8-1 (8) provides that “ ‘parent’ means either the legal father or the legal mother of the child.” OCGA § 19-11-3 (7) defines “parent” as “the natural or adoptive parents of a child.” See also Sutter v. Turner, 172 Ga. App. 777, 782 (325 SE2d 384) (1984).

5 196 Ga. 506 (27 SE2d 26) (1943).

6 194 Ga. 689 (22 SE2d 514) (1942).

7 With regard to OCGA § 15-11-43, see O’Neal v. Wilkes, 263 Ga. 850 (3) (439 SE2d 490) (1994).

8 258 Ga. 18 (365 SE2d 107) (1988).

9 Id. at 19, n. 1.

10 Id.

11 See generally Connor v. Rainwater, 200 Ga. 866, 870 (38 SE2d 805) (1946), which recognizes that where the custody dispute is between non-parents, the “child’s interest and welfare” should prevail even when one party has a “legal right” by virtue of an agreement.

12 See Rawdin v. Conner, 210 Ga. 508 (81 SE2d 461) (1954); Waldrup v. Crane, 203 Ga. 388 (46 SE2d 919) (1948); Bailey v. Holmes, 163 Ga. 272 (136 SE 60) (1926); Altree v. Head, 90 Ga. App. 601 (83 SE2d 683) (1954).

13 OCGA § 19-9-3; Dyche v. Dyche, 218 Ga. 833 (131 SE2d 104) (1963); Dorminy v. Dorminy, 242 Ga. 326 (249 SE2d 49) (1978).

14 194 Ga. 689 (22 SE2d 514) (1942).

15 Dissent, p. 653.

16 Brooks v. Parkerson, 265 Ga. 189, 194 (454 SE2d 769) (1995).

17 See Benjamin v. Bush, 208 Ga. 453 (67 SE2d 476) (1951), which held that abandonment of a child by his parent prior to making a contract voluntarily relinquishing parental power over the child renders the contract of no effect. In Bush the mother abandoned the child by leaving it in the woods after birth. The extreme facts of that case do not, however, preclude a determination that parental rights may be lost in other ways prior to the execution of a voluntary contract purporting to relinquish those parental rights to another. OCGA §§ 19-7-1 (b); 15-11-81.

18 In the Interest of D. A. P., 234 Ga. App. 257, 259 (506 SE2d 438) (1998).

19 Id.; In the Interest of L. F., 203 Ga. App. 522 (417 SE2d 344) (1992); see also In the Interest of B. M. L., 239 Ga. App. 511, 512 (521 SE2d 448) (1999).

20 In the Interest of D. A. P., 234 Ga. App. at 259; OCGA § 15-11-81 (b) (4) (C) (i).

21 234 Ga. App. at 260.