Rather, it automatically vests custody in a biological parent, unless the parent is unfit, to the exclusion of the other relatives who have performed the parental role of nurturing and caring for the child. See Knox v. Knox, 226 Ga. 619, 620 ( 176 S.E.2d 712) (1970) (custody of nine-year-old daughter cannot be granted to adult stepbrother merely because noncustodial father has not maintained a close relationship with his daughter); Peck v. Shierling, 222 Ga. 60 ( 148 S.E.2d 491) (1966) (reversing award of custody of 11-year-old boy to paternal aunt and uncle with whom he had lived for two years and to whom father had given custody because they failed to prove mother was unfit). See Howell, 234 Ga. at 146-147; cf. Ghrist v. Fricks, 219 Ga. App. 415 ( 465 S.E.2d 501) (1995) ("we have held time and time again that court must consider the best interest and welfare of the child before granting a legitimation petition, and that it is not bound by the desires and contentions of the biological parents").

See Code Ann. § 24A-3201; see also Code Ann. § 24A-301 (a)(2)(c) (as amended); Gatlin v. Thompson, 243 Ga. 668 ( 256 S.E.2d 353) (1979). See Perkins v. Courson, 219 Ga. 611 (2) ( 135 S.E.2d 388) (1964), and Peck v. Shierling, 222 Ga. 60 ( 148 S.E.2d 491) (1966), adding unfitness, when shown by clear and satisfactory proof, to the grounds specified in Code Ann. § 74-108, et seq. Appellants rely principally on Code Ann. § 74-106 (as amended by Ga. L. 1979, pp. 466, 492) which provides as follows: "Upon the death of either parent, the survivor is entitled to custody of the child: Provided, however, the court, upon petition, may exercise discretion as to the custody of the child, looking solely to the child's interest and welfare."

" Such a finding cannot be said to constitute "grave and substantial cause" for awarding custody to a third party on the ground of unfitness. Cf. Peck v. Shierling, 222 Ga. 60 ( 148 S.E.2d 491). Accordingly, the judgment awarding custody to the Gordon County Department of Family and Children Services must be reversed.

Sloan v. Jones, 130 Ga. 836 (1) ( 62 S.E. 21). As between parents neither has a prima facie right to the custody of the child superior to the other, but as between a parent and a third person the legal right is in the parent, and unless the proof of unfitness be clear and convincing, the custody of the child should be given to the parent. Hill v. Rivers, 200 Ga. 354 ( 37 S.E.2d 386); Roebuck v. Calhoun, 201 Ga. 496 ( 40 S.E.2d 142); Mills v. Mills, 218 Ga. 686 ( 130 S.E.2d 221); Peck v. Shierling, 222 Ga. 60 ( 148 S.E.2d 491). In this case it may be conceded for the sake of the decision that the evidence authorized the trial judge to find that the defendant, Dorothy Martin, is a fit and proper person to have the custody of the child.

A parent may also lose his parental rights where by clear and satisfactory proof it is shown that he is an unfit person to have custody. See Perkins v. Courson, 219 Ga. 611 ( 135 S.E.2d 388) (three Justices dissenting), for a comprehensive review of the cases on this subject; and Peck v. Shierling, 222 Ga. 60 ( 148 S.E.2d 491) (three Justices dissenting). In the present case it was not shown that the parent had lost her parental power under the above Code section or that she was unfit for custody.

Perkins, supra at 614. Peck v. Shierling, 222 Ga. 60 ( 148 S.E.2d 491) (1966), speaks of "unfitness for the trust." If summary judgment is ever proper when the challenge is parental fitness, which for one thing is not a jury question, it is not proper here.

Only then is the trial court authorized to consider an award of custody to third parties. Childs v. Childs, 237 Ga. 177, 178 ( 227 S.E.2d 49); Peck v. Shierling, 222 Ga. 60 ( 148 S.E.2d 491). A determination as to best interests of the child is not the sole standard to be used in a custody contest between a parent and a third party, including grandparents. Mathis v. Nicholson, 244 Ga. 106 ( 259 S.E.2d 55). Custody may not be granted to a third party unless a finding has been made upon clear and convincing evidence that the parent is unfit.

Appellant grandmother contends that Landers' conduct produced a de facto forfeiture of parental rights and that OCGA § 19-9-2, whereby custody inures to the surviving parent, is negated by the forfeiture. Porter v. Johnson, 242 Ga. 188 ( 249 S.E.2d 608) (1978); Peck v. Shierling, 222 Ga. 60 ( 148 S.E.2d 491) (1966). The record sub judice shows that Landers had both negligently and wilfully failed to fulfill his statutory duty to provide "the necessaries" for his minor children.

As this Court has explained before, the presumption that a surviving parent is entitled to custody can be overcome by clear and convincing evidence that the surviving parent is unfit. See Columbus v. Gaines, 253 Ga. 518, 519, 322 S.E.2d 259 (1984); Wright v. Hanson, 248 Ga. 523, 524(2), 283 S.E.2d 882 (1981); Miele v. Gregory, 248 Ga. 93, 93–95(2), 281 S.E.2d 565 (1981); Peck v. Shierling, 222 Ga. 60, 61–63, 148 S.E.2d 491 (1966). Here, the trial court found that Entrekin was, in fact, “unfit to be the custodian of this child.”