holding that evidence showing that a child will suffer some emotional distress does not meet the "rigorous harm" standard and noting "that the death of a parent, divorce, or change in home and school will often be difficult for a child, but some level of stress and discomfort may be warranted when the goal is reunification of the child with the parent"
How later courts described this case
- holding that evidence showing that a child will suffer some emotional distress does not meet the "rigorous harm" standard and noting "that the death of a parent, divorce, or change in home and school will often be difficult for a child, but some level of stress and discomfort may be warranted when the goal is reunification of the child with the parent"
- regarding parental fitness, the question is "can the parent provide for the child sufficiently so that the government is not forced to step in and separate the child from the parent"; it is not proper to terminate parental rights for the reason that "the child might have better financial, educational, or even moral advantages elsewhere"
- noting that the plurality “ultimately reaffirms the principles of Brooks [u. Parkerson] by holding that disputes between parents and third parties concerning the custody of the parents’ children must be resolved using the rigorous harm standard adopted in Brooks”
- interpreting the best interest standard of a parent-third party custody statute to require that the third party prove by clear and convincing evidence that "the child will suffer physical or emotional harm if custody were awarded to the biological parent”
Written by the judges who cited it.
Distinguished
Distinguished by Hastings v. Hastings, 291 Ga. 782 (2012)
Accordingly, Clark is factually distinguishable, and husband’s reliance thereon is misplaced.
The opinion
Sears, Justice,
concurring specially.
I concur in the judgment of the majority opinion, and applaud the majority for resolving a difficult issue that this Court and our State legislature have struggled with for many years.
In reaching its decision, however, the majority, in dicta, unnecessarily criticizes our holding in Brooks v. Parkerson 66 that both the Georgia Constitution and the United States Constitution require a finding of harm to a child before grandparent visitation can be ordered. I disagree with this criticism, and emphasize that, despite the majority’s criticism of Brooks, the majority ultimately reaffirms the principles of Brooks by holding that disputes between parents and third parties concerning the custody of the parents’ children must be resolved using the rigorous harm standard adopted in Brooks.
I also write to highlight the fact that the present disputes are between parents who have not cared for their children for a significant period of time and relatives who have stepped forward to do so. In these “reunification” cases, 67 the day-to-day bond of the parent-child relationship already has been interrupted, and the child may have formed strong and lasting relationships with the person who has been caring for him. I believe that, for these cases, the majority opinion properly recognizes a preference for the reunification of the parent and child, but permits a third party to prevent that reunification if the third party can meet the stringent harm standard set forth in the majority opinion.
It is critical to distinguish these “reunification” cases from cases in which a third party seeks to break apart an intact parent-child relationship by seeking custody of the parents’ child. 68 When a third party seeks to remove a child from the care of his or her parents, an even more stringent standard than that applied in the present case is necessary for the removal to be constitutional. In such “removal” cases, only the traditional parental fitness test can be constitutionally applied, 69 resulting in the removal of the children only when the *601 parents “are incapable of taking adequate care of their children.” 70
Finally, I take issue with the assertion in Justice Hunstein’s special concurrence that the changing face of the American family justifies the application of a best-interest-of-the-child standard when a third party seeks to obtain custody of a parent’s child. To the contrary, I find that the lamentable decline in the traditional family supports the harm standard adopted in the majority opinion. The best interest standard would erect unnecessary barriers to the reunification of a parent and child in appropriate cases by permitting a third party to retain custody of a child simply because the third party may be better able to provide for the child’s future and education. The best interest standard thus would facilitate the decline of the traditional parent-child family. On the other hand, the harm standard would stem the decline of the nuclear family by fostering the reunification of parent and child. That standard, however, also grants trial courts the flexibility to permit third parties to retain custody when physical or emotional harm would result to the child if custody were changed.
For the foregoing reasons, I concur specially in the majority opinion.
265 Ga. 189 ( 454 SE2d 769 ) (1995).
See Carolyn Wilkes Kaas, Breaking Up a Family or Putting It Back Together Again: Refining the Preference in Favor of the Parent in Third-Party Custody Cases, 37 Wm. & Mary L. Rev. 1045 , 1058-1059 (1996). In her article, Wilkes uses the term “reunification” to describe cases such as these, and the term “removal” to describe cases in which there is an on-going parent-child relationship, and a third party seeks to break that bond by seeking custody of the children.
Id. at 1055-1056 .
See generally Wilkes at 1068, 1085-1087, 1108-1111.
Id. at 1108 .