# Blackburn v. Blackburn

> Supreme Court of Georgia · June 29, 1982 · 249 Ga. 689

URL: https://www.frixlaw.com/law-library/cases/9601936

## Case

- **Full name:** Blackburn v. Blackburn
- **Court:** Supreme Court of Georgia
- **Decided:** June 29, 1982
- **Citations:** 249 Ga. 689; 292 S.E.2d 821; 1982 Ga. LEXIS 1167
- **Precedential status:** Published
- **Opinion:** Concurrence by Jordan
- **Judges:** Gregory, Jordan, Marshall, Smith
- **Cited by:** 141 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9601936

## How later opinions describe it (automated extraction)

- acknowledging that “freedom of personal choice in matters of family life is a fundamental liberty interest protected by the United States Constitution,” and that “the Due Process Clause of the Fourteenth Amendment demands that before a state may sever the rights of parents in …
- concluding that Santosky required the court to reexamine the proper standard of appellate review in termination-of-parental-rights cases

## Opinion text

Jordan, Chief Justice,
concurring specially.
I agree with the judgment reversing the trial court but for a different reason. The trial court should have granted the defendant’s motion to dismiss the plaintiffs action for lack of standing.
In my opinion the natural father was a necessary and indispensable party to this action. The natural father clearly had an interest in the custody of his minor son. There has been no hearing as to his parental rights and those rights have not been adjudicated.
In this case the father sought custody of the child in the divorce action. The award of custody to the mother in the divorce action did not terminate the father’s rights. In the event of death of the mother the prima facie right to custody automatically inures to the surviving parent. Howell v. Gossett, 234 Ga. 145 ( 214 SE2d 882 ) (1975). The same rule would apply where the mother has surrendered her right to custody, which the trial judge said she had done in this case. Under these circumstances, prima facie custody vested in the natural father absent a showing of unfitness, voluntary surrender, abandonment, *696 etc. Therefore, the grandmother had no standing unless and until the father’s rights were adjudicated.
In the landmark case of Stanley v. Illinois, 405 U. S. 645 (92 SC 1208, 31 LE2d 551) (1972) the United States Supreme Court held that this right inures to the natural father even though not married to the deceased mother and that due process entitles an unmarried father to a hearing on his fitness before his children can be taken from him.
A different standard applies in a contest for custody between the natural parents and a contest between a parent and a third person. A finding of the mother’s unfitness would not be necessary to authorize an award of custody to the father.
I would remand this case to the trial court for a determination of the rights of the natural father of the child. In my opinion this must be done before the custody can be awarded to a third person.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9601936. Public record. Not legal advice.