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Clark v. Wade

The best-interest-of-the-child standard is constitutional as applied to custody disputes between a noncustodial parent and a third party under O.C.G.A. § 19-7-1 b.1.

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In these two child custody disputes, the maternal grandparents challenge the trial court’s award of custody to the noncustodial father. The trial courts found in both cases that it would be in the best interest of each child to remain with his grandparents, but struck down the “best-interest-of-the-child” standard in OCGA § 19-7-1 b.1 as unconstitutional. We granted the grandparents’ discretionary applications to determine whether the best-interest-of-the-child standard is constitutional in custody disputes between a parent and a third party. Considering the fundamental rights of parents, we construe the custody statute as requiring the third party to show by clear and convincing evidence that parental custody would harm the child in order to rebut the statutory presumption in favor of the parent. With that narrowing construction, we uphold as constitutional the best interest standard when applied to custody disputes between a biological parent and custodial third party under OCGA § 19-7-1 b.1. Therefore, we reverse and remand.

I. FACTS AND PROCEEDINGS

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