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Simmons v. Williams

The trial court erred in depriving the father and grandmother of an opportunity to question the guardian ad litem about the results of his investigation, since the father and grandmother bore the burden of proving that a return of custody to the mother would harm the child and that remaining with the grandmother was in the child's best interest.

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In this child custody case, appellant Tyranius Simmons is the father of T. A. S., a minor child, and appellant Paula Benton is the child’s paternal grandmother. Appellee Shaunda Lester Williams is the child’s mother. After conducting a hearing, the trial court transferred custody of the child from the grandmother’s care to that of the mother. We granted the grandmother’s and the father’s application for discretionary review of the court’s order. For the reasons that follow, we reverse the judgment and remand this case to the trial court for additional proceedings consistent with this opinion. In custody disputes between a parent and a third party,1 Georgia law recognizes a statutory presumption in favor of parental custody. OCGA § 19-7-1 b.1. The third party may overcome this presumption by establishing that an award of custody to the parent would not be in the best interest of the child. Id.; Clark v. Wade .2 In order to make this showing,the third party must prove by clear and convincing evidence that the child will suffer physical or emotional harm if custody were awarded to the biological parent. Once this showing is made, the third party must then show that an award of custody to him or her will best promote the child’s welfare and happiness.Id. at 599 V.

The record in this case reflects that T. A. S. was born on March 4, 1999 to his mother and father when both were very young. Consequently, the child had been in the grandmother’s care and custody since he was 10 months old.3 The mother did not provide any support for the child during that time.

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