Opinion
A01A2236.
DECIDED: OCTOBER 11, 2001
Child custody. Clinch Superior Court. Before Judge Blitch.
Benson Phillips, Melinda B. Phillips, for appellant.
Suzanne P. MAthis, for appellee.
We granted this discretionary appeal to review whether the Clinch County Superior Court erred in awarding legal and physical custody of appellant-plaintiff David Ronald Stalvey's children to their maternal grandmother, appellee-defendant Gisela I. Bates. The record reveals that the superior court determined that the interests of the two children were best served by placing them in the legal and physical custody of Mrs. Bates. Mr. Stalvey was awarded visitation rights. Citing Clark v. Wade, 273 Ga. 587, 598-599 (IV) (544 S.E.2d 99) (2001), Mr. Stalvey appeals contending the superior court's best-interest-of-the-child determination was error in the absence of an initial finding that parental custody would harm the child, both determinations as upon clear and convincing evidence. Because we agree, we reverse and remand with direction that the superior court determine upon a clear and convincing evidence standard whether parental custody in Stalvey would harm the children, and, if so, whether an award of custody to Ms. Bates would be in their best interest.
The Supreme Court pertinently held that "the `best-interest-of-the-child' standard in O.C.G.A. § 19-7-1 (b. 1) requir[ed] the third party to show that parental custody would harm the child to rebut the statutory presumption in favor of the parent. Once this presumption is overcome, the third party must show that an award of custody to him or her will best promote the child's health, welfare, and happiness." Id. at 598.
The Court defined "harm" as "physical harm or significant, long-term emotional harm; not . . . merely social or economic disadvantages." Id.
Judgment reversed and remanded with direction. Andrews, P.J., and Miller, J., concur.
DECIDED OCTOBER 11, 2001.