Clark v. Wade

Hunstein, Justice,

concurring specially.

We are called upon in these appeals to determine whether the application of the best interest of the child standard in OCGA § 19-7-1 (b.l), the Georgia statute governing custody disputes between parents and certain third parties, violates the constitutional rights of competent parents to raise their children without undue interference by the State. I concur in the majority’s decision that OCGA § 19-7-1 (b.l) is constitutional but write separately because I reject the majority’s finding that in order to save the statute from constitutional challenge we must engraft onto the best interest of the child standard a categorical rule that authorized third parties who seek custody of a child must always first demonstrate that parental custody would harm the child. This precondition is not constitutionally required because the statute, as written and intended to be applied by the General Assembly, properly balances the competing constitutional interests of parents, children and the State.

While I agree with the majority that parents’ interests in raising their children without undue interference of the State is one of the oldest and most fundamental of liberty interests, in my view the conclusion that a showing of harm is constitutionally required rests, in large part, upon the misplaced and often incorrect assumption that the parents have been the child’s primary caregivers and that third *602 parties who seek custody have no legitimate or established relationship with the child. In reality, many children today are being raised not by their parents but by other family members with a strong attachment to the child and who have lovingly and responsibly acted in the role of the child’s parent. The relationships that form from such attachments, although not always biological, are of importance to both the child and society because they “derive from the intimacy of daily association, and from the role it plays in ‘promot(ing) a way of life’ through the instruction of children. [Cit.]” Smith v. Organization of Foster Families for Equality and Reform, 431 U. S. 816, 844 (II) (B) (97 SC 2094, 53 LE2d 14) (1977). As recognized by Justice Benham in Brooks v. Parkerson, 265 Ga. 189, 201-202 ( 454 SE2d 769 ) (1995):

Parental autonomy is grounded in the assumption that natural parents raise their own children in nuclear families, consisting of a married couple and their children. . . . The realities of modem living, however, demonstrate that the validity of according almost absolute judicial deference to parental rights has become less compelling as the foundation upon which they are premised, the traditional nuclear family, has eroded. . . . More varied and complicated family situations arise as divorces, and decisions not to marry, result in single-parent families; as remarriages create step-families; as some parents abandon their children; as others give them to temporary caretakers; and as still others are judged unfit to raise their own children. One of the frequent consequences, for children, of the decline of the traditional nuclear family is the formation of close personal attachments between them and adults outside of their immediate families. ... It ... [is] shortsighted indeed, for this court not to recognize the realities and complexities of modem family life, by holding today that a child has no rights, over the objection of a parent, to maintain a close extra-personal relationship. . . .

(Benham, J., dissenting) quoting Roberts v. Ward, 493 A2d 478, 481 (N.H. 1985).

Even the United States Supreme Court has acknowledged the changing demographics of the American family. In Troxel v. Granville, 530 U. S. 57 (120 SC 2054, 2059, 147 LE2d 49) (2000), the plurality noted that according to U. S. Department of Commerce, Bureau of Census Statistics, in 1996, 28 percent of children in the United States lived in single parent households, while in 1998 approximately 4 million children, 5.6 percent of all children under the age of *603 18, lived in the household of their grandparents. Troxel, supra, 120 SC at 2059 (II). See also id., 120 SC at 2077-2078 (Kennedy, J., dissenting) (conventional nuclear family is no longer the structure or prevailing condition in many households). Due, at least in part, to the changing face of the American family, most states, including Georgia, have attempted to protect the welfare of the children and the relationships they have formed with family and de facto parents by enacting nonparental visitation and custody statutes. These statutes are further supported by the recognition of the State’s interest in protecting the welfare of its children as parens patriae as well as the interests of the child in protecting established familial or family-like bonds. See Prince v. Massachusetts, 321 U. S. 158, 166 (64 SC 438, 88 LE 645) (1944); Troxel, supra, 120 SC at 2071-2072 (Stevens, J., dissenting) (child has “extremely likely” liberty interest in preserving established familial or family-like bonds); Blackburn v. Blackburn, 249 Ga. 689, 692, n. 5 ( 292 SE2d 821 ) (1982) (as parens patriae, State has legitimate interest in protecting those who cannot protect themselves).

Although recognizing the competing constitutional interests of parents, children, and the State, the majority nevertheless places parents’ rights above all others by requiring that a party demonstrate that parental custody would harm the child as a condition precedent. As this Court recognized in Stills v. Johnson, 272 Ga. 645, 651 (2) ( 533 SE2d 695 ) (2000), a showing of harm to the child has never been applied to custody disputes in this State and, in my view, it is not constitutionally required to uphold OCGA § 19-7-1 (b.l). See also Troxel, supra, 120 SC at 2070-2071 (Stevens, J., dissenting) (“[w]hile, as the Court recognizes, the Federal Constitution certainly protects the parent-child relationship from arbitrary impairment by the State, [cit.] we have never held that the parent’s liberty interest in this relationship is so inflexible as to establish a rigid constitutional shield, protecting every arbitrary parental decision from any challenge absent a threshold finding of harm”). Although in Brooks, supra, a majority of this Court found unconstitutional Georgia’s grandparent visitation statute because it failed to require a showing of harm before visitation could be ordered, I agree with the majority’s suggestion in these appeals that the holding of Troxel calls into question the continued validity of the Brooks opinion to the extent it was decided on Federal constitutional grounds. 71 Moreover, although *604 Troxel addresses the issue of child visitation and not custody, I believe it is instructive and supports my conclusion that OCGA § 19-7-1 (b.l) as written is constitutionally valid.

The United States Supreme Court in Troxel was confronted with the State of Washington’s third party visitation statute which allowed any person to petition for visitation rights with a child at any time with the only requirement being that the visitation serve the best interest of the child. The Washington Supreme Court struck down the statute on Federal constitutional grounds because the statute required no threshold showing of harm and because it swept too broadly by allowing “any person” to petition for forced visitation under a best interest of the child standard. In a plurality opinion, four justices of the United States Supreme Court found the statute unconstitutional as applied because it infringed upon the fundamental right of parents to make decisions concerning the care, custody and control of their children. Troxel, supra, 120 SC at 2060. Of primary concern to the Court was the absence within the statute of a requirement that a court accord a parent’s decision that visitation would not be in the child’s best interest any deference or presumption of validity, thereby providing no protection to the parent’s fundamental constitutional right to make decisions concerning his or her child. Id. at 2061-2062.

In contrast to the “sweepingly broad” statute at issue in Troxel , OCGA § 19-7-1 (b.l) provides, in pertinent part:

in any action involving the custody of a child between the parents or either parent and a third party limited to grandparent, great-grandparent, aunt, uncle, great aunt, great uncle, sibling, or adoptive parent, parental power may be lost by the parent, parents, or any other person if the court hearing the issue of custody, in the exercise of its sound discretion and taking into consideration all the circumstances of the case, determines that an award of custody to such third party is for the best interest of the child or children and will best promote their welfare and happiness. There shall be a rebuttable presumption that it is in the best interest of the child or children for custody to be awarded to the *605 parent or parents of such child or children.

OCGA § 19-7-1 (b.l), through the application of the best interest of the child standard, thus allows the trial court making the custody decision to consider a multitude of factors, including the fitness of the potential custodian and potential harm to the child, which affords more protection for the child. See Stills, supra at 650 (applying best interest of child standard to custody dispute between non-parents). At the same time, it is constitutionally significant that the statute gives substantial weight to the parents’ rights by including the presumption that it is in the best interest of the child for custody to be awarded to the parent, thereby preserving the presumption that a fit parent will act in the best interest of the child. Through the inclusion of such presumption in OCGA § 19-7-1 (b.l), together with the restriction on the third parties authorized to petition for custody, the General Assembly avoided the constitutional pitfalls in the Washington statute in Troxel .

The precise scope of parental rights in the context of child custody must be carefully considered on a case by case basis. To focus solely on the interests of the parents, as does any standard mandating a showing of harm, ignores what may be the equally compelling interest of the child or the State in protecting the child’s welfare and happiness. The facts of the two appeals before us illustrate the danger of requiring a showing of harm. The custody cases at issue do not involve a third party seeking to interfere with an established parent-child relationship but involve a biological parent seeking to gain custody of a child from grandparents who have been responsible for the daily care of the child and are now seeking to keep intact a family unit already in existence. See Quilloin v. Walcott, 434 U. S. 246, 255 (IX) (A) (98 SC 549, 54 LE2d 511) (1978). In these circumstances, the interests of the State and the child in maintaining the stability of the only family unit the child has ever known must be accorded great weight and the biological parents’ rights to the custody and control of their children must be examined in light of the fact that they have allowed third parties to raise the children for all or most of their lives. See generally Lehr v. Robertson, 463 U. S. 248, 260 (103 SC 2985, 77 LE2d 614) (1983) (parents’ interests “ ‘do not spring full-blown from the biological connection between parent and child. They require relationships more enduring.’ [Cit.]”). To hold otherwise places the parents’ rights above all others and treats children as the mere chattel of their biological parents.

In order to balance and protect the rights of all parties, a trial court must be authorized to consider the entirety of the circumstances and to assess the importance of the conflicting interests present in every custody dispute. Because I believe that OCGA § 19-7-1 *606 (b.l) properly balances the competing interests of the child, the parents, and third parties authorized to seek custody under the statute and that the potential harm to the child should be but one factor to be considered by a court making a custody determination, I would not construe OCGA § 19-7-1 (b.l) to require a showing of harm but would hold it to be constitutional as written. Accordingly, I can concur only in the judgment of the majority opinion.

In Troxel , the Court noted that each of the 50 states has adopted some version of a third party visitation statute and that every state, except Georgia, permits a court to require third party visitation in certain cases if it is found to be in the best interests of the child. See Troxel, supra, 120 SC at 2078 (Kennedy, J., dissenting). The plurality declined to address the question of whether the Constitution requires such statutes to include, as a condition *604 precedent to ordering visitation, a showing of harm to the child but agreed that “the constitutionality of any standard for awarding visitation turns on the specific manner in which that standard is applied.” Id. at 2064. Two justices would have reached the issue and stated their belief that a showing of harm is not constitutionally required in every instance. See id. at 2070 (II) (lack of requirement that harm be shown does not provide sufficient basis to hold invalid statute in all applications) (Stevens, J., dissenting) and id. at 2075 (Kennedy, J., dissenting) (parent does not have constitutional right to prevent visitation in all cases not involving harm).