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Stalvey v. Bates

The trial court erred in using a best interest of the children standard in granting legal and physical custody of the father's children to their maternal grandmother without first determining upon clear and convincing evidence whether parental custody in the father would harm the children.

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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 SE2d 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,1 we reverse and remand with direction that the superior court determine upon a clear and convincing evidence standard whether parental custody in Mr. Stalvey would harm2 the children, and, if so, whether an award of custody to Ms. Bates would be in their best interest.

Judgment reversed and remanded with direction. Andrews, P.J., and Miller, J., concur.

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