Under Georgia law, parents ordinarily have custody and control of their children who are under 18 and aren’t emancipated. When parents have divorced (or separated if they were never married) one of them might have sole custody or they might have joint custody. In custody cases between parents, courts base decisions on the best interests of the children involved. A court does not have to find one parent "unfit" in order to award sole custody to the other parent. For more information on child custody in Georgia, see Child Custody in Georgia: The Best Interests of the Child.
What is an Unfit Parent?
Sometimes, a parent loses the right to custody of a child because a court determines that the parent is unfit. Georgia law (Section 19-7-1 of the Georgia Code) states that a parent can give up parental custody rights voluntarily or can be deemed "unfit" and lose such rights by:
- abandoning a child
- mistreating a child, or
- failing to provide a child with the necessities of life.
When can a Third-Party Gain Custody of a Child From the Child's Parent?
Section 19-7-1 allows certain close relatives, such as grandparents, aunts, uncles, and siblings, to bring a court action for child custody against one or both parents. The law recognizes that a parent has a "rebuttable presumption" to custody, but allows a court to award custody to a relative if it would be in the child’s best interests and is the best way to promote the child’s happiness and welfare. However, the third-party relative must also show that the child's parent voluntarily gave up all custody rights or is unfit.
Showing that a parent is unfit is a very serious undertaking. In Georgia, a parent’s right to custody of a child is a fundamental liberty interest protected by the United States Constitution. Because parents' custodial rights of their children are constitutionally protected, courts require proof of unfitness to be supported not just by some evidence, or even by substantial evidence, but "clear and convincing" evidence.
Absent abandonment or cruelty, a court will not ordinarily find a parent to be unfit as long as that parent is behaving responsibly in trying to care for a child and is currently able to provide the child with adequate food, shelter, and protection.
It is not enough for a third-party relative seeking custody to show that the parent has faced challenges in providing for the child due to unemployment or poverty. It is also not enough to show that the parent is engaging is immoral behavior, such as involvement in an adulterous relationship, unless that immoral behavior causes the parent to be unable or unwilling to care for the child. It does not matter if the third party can provide the child with a higher standard of living or better opportunities. The court won’t compare the parent’s ability to raise the child to the third party’s ability, but will only look at whether or not the parent is actually unfit.
If you have questions about bringing or defending against an action for child custody, you should contact an experienced family law attorney for advice.