Award of Custody to Grandparent Overturned

Award of Custody to Grandparent Overturned

In Geiger v. Allmond, 371 Ga. App. 641 (May 23, 2024), the Court of Appeals reversed a trial court decision awarding custody of two minor children to their paternal grandmother.

Several cases were consolidated on appeal. Ashely Geiger, the mother, appealed the award of custody to Patti Allmond, the paternal grandmother. Other issues in the trial court included the Mother’s motion for contempt, seeking to enforce visitation rights, and the father’s petition to modify visitation. The custody issue concerned O.C.G.A. § 19-7-1(b.1).

In custody cases, the Court of Appeals defers to the trial court’s findings of fact and views the evidence in the light most favorable to the trial court’s findings. The evidence showed that the father, Travis Wells, was in a relationship with the mother for 22 years. The parents were never married. The relationship, toxic from the start, soured to the point where the mother fled to Florida. While in Florida, the mother lived with the maternal grandmother and the grandmother’s boyfriend. The boyfriend was a registered sex offender. At that point, Wells filed a petition for legitimation which was granted. Wells was awarded primary physical custody with the parents having joint legal custody and the mother having visitation once per month.

A few months later, Wells denied the mother visitation, so the mother filed her contempt motion. Wells filed his emergency motion to modify custody and suspend the mother’s visitation, basing it on the maternal grandmother’s boyfriend status as a sex offender. This followed discovery that their daughter complained of a molluscum infection on various parts of her body. The daughter was examined, but the conclusion was that these infections were common and there was no evidence of sexual battery.

Following this process the mother was awarded temporary custody. Eventually the mother offered to give the children to Allmond who had been primary caregiver for the children while Wells had custody. At this point, Allmond filed a motion to intervene in the custody case, seeking custody as a grandparent. Although the guardian ad litem recommended that primary custody be given to the mother, after granting the motion to intervene, the trial court awarded permanent custody to the Grandmother with visitation to the Mother and Father on alternating weekends.

The mother appealed, arguing there was insufficient evidence to give the grandparent custody over her children. The court of appeals agreed.

OCGA § 19-7-1(b.1) provides as follows:

Notwithstanding . . . 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 [and other relatives], parental power may be lost by the parent . . . 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.

Thus, the Code establishes

a rebuttable presumption that it is in the best interest of a child to award custody to the parent of the child. To overcome this presumption, a third-party relative must show, with clear and convincing evidence, that the child will suffer either physical harm or significant, long-term emotional harm if custody is awarded to the parent. In addressing the issue of harm, trial courts must consider a variety of factors beyond biological connection or generalized notions of parental fitness. They also must consider the parental needs and the circumstances of the child in question, including (1) who are the past and present caretakers of the child or children; (2) with whom has the child or children formed psychological bonds and how strong are these bonds; (3) have the competing parties evidenced interest in, and contact with, the child or children over time; and (4) are there any unique medical or psychological needs of the child or children.

A Georgia court cannot award custody to a non-parent merely because of social or economic disadvantages. The focus of trial court’s determination of unfitness must be the parent’s ability to provide for the children in a manner sufficient to preclude the need for an entity of the government to intervene and separate the children from the parent, and a court is not permitted to terminate a parent’s natural right to custody merely because it believes that the children might have better financial, educational, or moral advantages elsewhere, that is, the parent’s ability to raise her children is not to be compared to the fitness of a third person.

The court reviewed the evidence presented below including (1) the mother’s alleged prior drug use; (2) exposure to a sexual predator; (3) allegations that one child was not given prescribed medication; (4) the mother’s alleged failure to provide for necessities; (5) prolonged periods where she failed to communicate with her children; and (6) returning the children to the grandmother. The court concluded that the evidence presented in the trial court did not prove abandonment and did not prove the mother was unable to care for her children. “The Grandmother’s burden in this context is to demonstrate that the Mother lacks the “ability to provide for the children in a manner sufficient to preclude the need for an entity of the government to intervene and separate the children from the parent,” and that the children will suffer long-term harmed caused by the Mother’s custody. The record fails to do so.”

Grandparent custody cases are difficult as demonstrated by this case.