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The constitutionality of Georgia’s so-called grandparents’ custody law has been widely tested again, this time in Rockdale County. A Rockdale Superior Court judge last week struck down the law, which allows certain relatives to obtain custody of a child over parents’ objections when it is in “the best interest of the child.” Rockdale Chief Judge Sidney L. Nation Sr. concluded that the law impermissibly interferes with fundamental parental rights and is unconstitutionally vague. Under the law, grandparents might always be the preferred custodians of children, the judge said in his ruling. Nation’s June 20 ruling for the father of a 7-year-old boy and against the child’s maternal grandparents, is the latest in a string of varying trial court pronouncements on the controversial custody statute. Since its passage in 1996, O.C.G.A. 19-7-1(b)(1) has given ammunition to grandparents around the state fighting for custody of their children’s children and alarmed parents. The statute shifted the focus of custody disputes from the fitness of the parent to the best interests of the child, permitting designated relatives, including grandparents, to win custody if they show the child would be better off with them. Proponents claimed the law merely allowed courts to consider that children sometimes may be better off with a relative. Detractors branded it an impermissible state intrusion on the rights of parents to raise their children as they saw fit. The statute, also known as the third-party custody statute, provides: “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 parent or parents of such child or children, but this presumption may be overcome by a showing that an award of custody to such third party is in the best interest of the child or children. The sole issue for determination in any such case shall be what is in the best interest of the child or children.” Fulton Superior Court judges issued split rulings in 1998 on the constitutionality of the law, with Judge Bensonetta Tipton Lane rejecting it as unconstitutionally vague and weighted in favor of grandparents. Judges Gail S. Tusan and Stephanie B. Manis found the statute constitutional in certain circumstances. (Daily Report, Aug. 11, 1998) The Georgia Supreme Court has yet to address the issue. The justices considered�and voided�a related statute in 1995 that permitted grandparents to seek court-ordered visitation against the wishes of the parents. Brooks v. Parkerson, 265 Ga. 189 (1995). But when it came to the custody law, the justices only got as far as oral arguments in a 1998 case. While the issue triggered lively debate, when the decision in Grantham v. Grantham came down, the court had sidestepped the issue and remanded the case to the trial court for other reasons. Grantham v. Grantham, 269 Ga. 413 (1998). Since then, several other cases that might have given the court the opportunity to tackle the underpinnings of the law have settled or been dismissed. “So many cases going up have fallen by the wayside,” says Kristine R. Moore Tarrer of Covington’s Moulton & Massey, one of the winning lawyers in the Rockdale case. TROXEL IS ‘WRITING ON WALL’ A recent U.S. Supreme Court decision, however, could spell the end for the Georgia statute, Tarrer says. In Troxel v. Granville, 2000 W.L. 712807 (U.S. Wash. June 5, 2000), the Supreme Court struck down a Washington state law on grandparent visitation, finding that it unconstitutionally infringed on parents’ rights to make decisions regarding child rearing. “I think the writing’s on the wall” for the Georgia grandparent custody statute, says Tarrer, who handled the Rockdale case with J. Wayne Moulton of the same firm. Opposing counsel in the Rockdale case, Sylvia Martin of Atlanta’s Davis, Matthews & Quigley, says the Drivers will appeal and that Nation signed a certificate of immediate review Wednesday, allowing the case to go to the Georgia Supreme Court. Tarrer’s client, John S. Raines of Covington, filed a petition in early 1997 seeking custody of his son, who was living with his mother, Dawn Veal, and her parents Martha and Carey Driver. Within a month, the Drivers filed a motion to intervene and a complaint seeking custody based on O.C.G.A. 19-7-1(b)(1). Veal, who was never married to Raines, did not seek custody. Raines is now married and has another child. A court-appointed guardian ad litem found both Raines and the Drivers were fit custodians. Nation awarded the grandparents temporary custody and then permanent custody in 1998. Raines had visitation rights. The grandparents did not argue that Raines was unfit, but cited evidence that the child had broken his arm and not been treated while in Raines’ care, as well as another incident involving a bruise left by a spanking. But Raines challenged the custody decision and Nation granted a new trial last year. Then Tarrer and Moulton filed a motion for summary judgment on the grounds that the statute was unconstitutional. In their brief, they argued that the law violated parents’ due process rights because it required no showing that a parent was unfit and that the state could not step in simply because it might benefit the child. “Absent a judicial finding of parental unfitness or forfeiture of parental rights, courts cannot constitutionally remove custody of a child from the natural parent and place custody in a third party,” Raines’ lawyers argued. 25 YEARS OF CASE LAW CITED They relied heavily on what they said was at least 25 years of case law that requires a showing of unfitness before a third party can take custody of a child away from a parent. They cited the Brooks ruling by the Georgia Supreme Court. Brooks, they pointed out, dealt only with visitation while the custody statute “permits a much more intrusive state intervention.” The Drivers countered that the custody law was enacted after Brooks and that it should be presumed legislators took that decision into account and wrote a constitutional statute. They argued further that Nation had not simply applied a “best interest of the child” standard, but had found the health and welfare of the child might be at risk if Raines was awarded custody. The statute preserved parents’ constitutional rights, Martin wrote in her brief for the Drivers, with its presumption in favor of parental custody, while at the same time allowing courts to consider the child’s needs. “While a parent might not be unfit, as in this case, a child’s welfare might nonetheless be harmed by an award of custody to the parent instead of a non-parent,” she added. Nation, however, concluded that the law allowed the presumption in favor of the parents to be rebutted by a “vague and undefined showing that placing the children with a third party is in their best interest.” Grandparents, he pointed out, are typically better established financially, philosophically and are more experienced in child rearing. Often, they have more time and resources to devote to children than do working-age parents. Quoting extensively from Fulton Judge Lane’s 1998 order, Nation found the statute was “so loose and so fluid that it conceivably permits a finding that it is in the best interest of most children to be in the custody of their grandparents. � “Can the parental presumption,” he continued, “be rebutted by a showing that the grandparents can provide a two-parent home for a child while the parents have succumbed to today’s mounting tide of divorce statistics?” What about a showing that they could provide the child computers, or his own room, or that the child could stay home rather than attend day care? he asked. The statute, Nation concluded, would allow a court to substitute its subjective view of what is best for the child for the views of the parent, and would deprive parents of their liberty and privacy interests in the care and management of their children.

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