Stone v. Stone

297 Ga. 451
FINAL COPY

S15F0064. STONE v. STONE et al.

MELTON, Justice.

Pursuant to Supreme Court Rule 34, we granted David E. Stone’s

(Husband) application to appeal the final decree entered in his divorce from

Anna Stone (Wife). In doing so, we stated our specific interest in determining

whether the trial court erred by awarding joint legal custody of the parties’

minor son to Husband and Sandra Webb, the maternal grandmother

(Grandmother).1 Because Georgia statutory law supports joint custody

arrangements only between parents, we must reverse the award of joint legal

custody in this case.2

As is pertinent here, the record shows that Husband and Wife have been

married to each other twice, and they have one minor son. Husband and Wife

were divorced the second time by a decree dated January 13, 2014, and this

1
Grandmother was allowed to intervene in the divorce proceedings.
2
We note that there are two additional related cases now pending in this
Court – Case No. S15A0266 and Case No. S15A0267. We do not address those
cases in this opinion.
decree incorporated a parenting plan. Among other things, the parenting plan

awarded joint legal custody of the minor child to Husband, who the court

specifically found was a fit parental custodian, and Grandmother. Husband was

given primary physical custody, Grandmother was given visitation rights, and

Wife, who the court found was unfit to have custody, was given only a potential

for future visitation.

In the Georgia Code, our legislature has clearly indicated that joint

custody arrangements do not include third parties when one or both parents are

suitable custodians.3 OCGA § 19-9-3, which lays out the general guidelines for

custody considerations, shows a recognition that joint custody considerations

remain with the parents of the child. OCGA § 19-9-3 (a) (1) provides:

In all cases in which the custody of any child is at issue between the
parents, there shall be no prima-facie right to the custody of the
child in the father or mother. There shall be no presumption in favor

3
In making this determination,
we apply the fundamental rules of statutory construction that
require us to construe [the] statute according to its terms, to give
words their plain and ordinary meaning, and to avoid a construction
that makes some language mere surplusage. At the same time, we
must seek to effectuate the intent of the legislature.
(Citations omitted.) Slakman v. Continental Cas. Co., 277 Ga. 189, 191 (587
SE2d 24) (2003).
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 of any particular form of custody, legal or physical, nor in favor of
either parent. Joint custody may be considered as an alternative
form of custody by the judge and the judge at any temporary or
permanent hearing may grant sole custody, joint custody, joint legal
custody, or joint physical custody as appropriate.

(Emphasis supplied.) The statute goes on to state an express desire to preserve

sharing of rights between parents and visitation with parents and grandparents.

OCGA § 19-9-3 (d) states:

It is the express policy of this state to encourage that a child has
continuing contact with parents and grandparents who have shown
the ability to act in the best interest of the child and to encourage
parents to share in the rights and responsibilities of raising their
child after such parents have separated or dissolved their marriage
or relationship.

(Emphasis supplied.) Quite explicitly, the statute includes grandparents with

parents for purposes of contact (visitation) with the minor child, but, when

rights and responsibilities (custody) are in consideration, the statute excludes

grandparents and encourages sharing between the parents only.

This express policy is then employed in the definitions of key terms in the

statute. OCGA § 19-9-6 (5) explains:

“Joint legal custody” means both parents have equal rights and
responsibilities for major decisions concerning the child, including
the child's education, health care, extracurricular activities, and
religious training; provided, however, that the judge may designate

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 one parent to have sole power to make certain decisions while both
parents retain equal rights and responsibilities for other decisions.

(Emphasis supplied.) Once more, the statute pairs “rights and responsibilities”

solely with the parents, and grandparents are excluded. This is to be expected,

as the stated definition of “joint legal custody” furthers the express policy of

encouraging shared rights and responsibilities between parents. To a similar end,

the statute states that “‘[j]oint physical custody’ means that physical custody is

shared by the parents in such a way as to assure the child of substantially equal

time and contact with both parents.” (Emphasis supplied.) OCGA § 19-9-6 (6).

Grandparents are again excluded from an arrangement for joint custody.

The purposeful nature of the Legislature’s decision to exclude

grandparents from sharing joint custody with a parent is also evident from the

statutory definition of “sole custody.”

“Sole custody” means a person, including, but not limited to, a
parent, has been awarded permanent custody of a child by a court
order. Unless otherwise provided by court order, the person
awarded sole custody of a child shall have the rights and
responsibilities for major decisions concerning the child, including
the child's education, health care, extracurricular activities, and
religious training, and the noncustodial parent shall have the right
to visitation or parenting time. . . .

(Emphasis supplied.) OCGA § 19-9-6 (11). Here, the entity paired with “rights

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and responsibilities” is a “person,” which may be someone other than a parent.

This shows, on the face of the statute, that the Legislature intended that persons

may have sole legal custody of a child when no parent is suitable for custody,

but only parents may have joint legal custody. If the Legislature had intended

otherwise, it would have included “a person” in the category of those who could

have joint custody of a child with a parent. It did not.

This statutory construction dovetails perfectly with the Legislature’s

presumptions regarding the exercise and removal of parental power. OCGA §

19-7-1 (b.1) states:

[I]n 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 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.

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This statute indicates that there are only three groups capable of exercising

parental control: a parent, parents, or a third parties of a limited class. A group

comprised of a parent and a third party is not mentioned because it is not a

combination who may be empowered with joint control over a child. This

becomes even more evident since there is a rebuttable presumption that it is in

the best interests of a child to give custody to a parent or parents, and a third

party may gain custody only after showing “by clear and convincing evidence

that parental custody would harm the child.” Clark v. Wade, 273 Ga. 587,

587-588 (544 SE2d 99) (2001) (construing OCGA § 19-7-1 (b.1)). Moreover,

construing the Code as authorizing the State to require a fit and capable parent

to share custody of his child with anyone except the child’s other parent would

raise significant constitutional concerns. See Brooks v. Parkerson, 265 Ga. 189

(454 SE2d 769) (1995). Statutes should be interpreted to avoid serious

constitutional concerns where such an interpretation is reasonable. See Haley

v. State, 289 Ga. 515, 522 (712 SE2d 838) (2011).

In light of the foregoing, the trial court in this case had no power to grant

joint custody to Husband and Grandmother, and that award must be vacated.

This result does not mean, however, that the statute does not respect and

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promote the interaction of loving grandparents with a minor child. To the

contrary, the statute encourages contact with grandparents in OCGA § 19-9-3

(d), and OCGA § 19-7-3 provides a mechanism for a grant of visitation rights

to grandparents when necessary to ensure and preserve this contact. Also, in

situations where neither parent is suitable to have custody, a grandparent might

certainly be “a person” qualified to have sole custody of a minor child.

However, in situations where a parent is suitable to exercise custody over a

child, the statute does not allow that parental custody to be limited by a joint

custody arrangement with a grandparent or, for that matter, any other person.

Judgment reversed in part. All the Justices concur, except Benham and

Hunstein, JJ., who dissent.

HUNSTEIN, Justice, dissenting.

The result of the majority’s opinion is that a grandmother, who has been

the primary caretaker and the sole source of stability and security for almost the

entire life of her grandson, will no longer have any legal right to participate in

his care. Because I disagree with the holding of the majority and do not believe

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that sole legal custody to David E. Stone (Husband) is in the best interest of the

child, I must dissent.

In order to understand the repercussions of the majority’s decision, it is

important to recite here the particular circumstances of this case. In 2005, a

child was born to Husband and Anna Stone (Wife); the parents were not

married. Husband, Wife, and child moved into the home of child's maternal

grandmother, Sandra Webb (Grandmother). Wife had a history of drug abuse,

and therefore, the Department of Family and Children Services would visit

Grandmother’s home to drug test Wife. Six months later, Wife and Husband

were married and moved into their own home, and the child resided with them.

Over the next few years, Husband and Wife continued to struggle with

difficulties, including Wife’s arrest and continued drug abuse and Husband’s

work out of state. Although there were times that the child resided with Wife

or Husband, Grandmother was the primary caretaker of the child.

Husband and Wife were divorced for the first time in March 2011. At that

time, Wife was awarded primary physical custody of the child; Wife and child

lived with Grandmother. In October 2011, Grandmother was granted temporary

guardianship of the child with the consent of both Husband, because he worked
out of state, and Wife, because she needed to attend inpatient drug treatment.

Before this guardianship case was completed, Grandmother petitioned for

custody in Gwinnett Superior Court on March 26, 2013.

In the meantime, after inpatient drug treatment, Wife left Georgia to live

with Husband, rather than complete her outpatient drug treatment. Wife and

Husband remarried in April 2013. Husband then filed for divorce in Gwinnett

Superior Court on July 16, 2013. The court granted Grandmother’s motion to

intervene in the divorce action. At all times, the child remained with

Grandmother and attended school in her district.

With Grandmother having been granted leave to intervene in the divorce

action, the three parties were concurrently litigating the divorce and custody

proceedings.4 Because this is a custody dispute between parents and a

4
The trial court consolidated the pending actions and held hearings in the
consolidated cases. The court issued orders simultaneously regarding custody and
visitation in the pending cases, with some orders filed in more than one case. In the
divorce action, of which this Court has jurisdiction, the court entered a divorce decree
incorporating a permanent parenting plan. Although the permanent parenting plan
awards joint legal custody to Husband and Grandmother, the court did not provide
any rationale for this decision in the permanent parenting plan. Instead, the court
explained its decision to award joint legal custody during one of the consolidated
hearings and later set forth this explanation in the order the court entered in the
custody case. To be clear, I do not purport to render an opinion with regard to the
written custody order entered by the court. However, I have reviewed the record in
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grandparent, it is governed by OCGA § 19-7-1 (b.1).5 See Clark v. Wade, 273

Ga. 587 (II) (544 SE2d 99) (2001) (plurality opinion).

Pursuant to OCGA § 19-7-1 (b.1), in awarding custody, the court is to

determine what is in the best interest of the child and to consider the child's

interest in a safe, secure environment that promotes his physical, mental, and

emotional health and development. Clark, 273 Ga. at 593. “In considering what

is in the best interest of the child, the trial court may consider the child's

the divorce proceedings and rely on the explanation the court provided therein for its
award of joint legal custody.
5
OCGA § 19-7-1 (b.1) provides as follows:
Notwithstanding subsections (a) and (b) of this Code section or
any other law to the contrary, 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 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.

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historical relationship with the parent, the child's relationship with the

third-party custodian, and the child's special medical, emotional, or educational

needs.” Id.

[OCGA § 19-7-1(b.1) ] establishes a rebuttable presumption
that it is in the best interest of the child to award custody to the
parent of the child. The following three presumptions are implicit
in the statute: (1) the parent is a fit person entitled to custody, (2) a
fit parent acts in the best interest of his or her child, and (3) the
child's best interest is to be in the custody of a parent. The
presumption can nonetheless be overcome by the third-party
relative showing, by clear and convincing evidence, that parental
custody would harm the child. Harm in this context has been
defined . . . as either physical harm or significant, long-term
emotional harm[, not] merely social or economic disadvantages.
Once the presumption has been overcome, the third-party relative
must prove that an award of custody to him or her will best promote
the child's health, welfare, and happiness.

Galtieri v. O'Dell, 295 Ga. App. 797, 798 (673 SE2d 300) (2009) (citations and

punctuation omitted); see Clark, 273 Ga. at 593, 598-599. Additionally, in

evaluating the issues of harm and custody, the trial court should consider a

variety of factors to encompass the child’s needs:

(1) who are the past and present caretakers of the child; (2) with

whom has the child formed psychological bonds and how strong are

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 those bonds; (3) have the competing parties evidenced interest in,

and contact with, the child over time; and (4) does the child have

unique medical or psychological needs that one party is better able

to meet.

Clark, 273 Ga. at 598-599 (footnotes omitted).

With regard to Wife, the court found by clear and convincing evidence

that Wife was currently unfit to have custody of the child and an award of

custody to her would result in physical and significant, long-term emotional

harm to the child. This finding was based on Wife’s continued struggles with

chronic, unrehabilitated substance abuse, and the fact that, at the time of the

trial, she was incarcerated and had no means of support or home to provide for

the child.

With Grandmother having overcome the presumption as to Wife, see

Clark, 273 Ga. at 598, the court concluded that Grandmother had shown by clear

and convincing evidence that the child would suffer significant, long-term

emotional harm if Grandmother was not allowed to continue to be “a legal and

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physical presence in the child’s life” and also that it was in the best interest of

the child that Grandmother maintain a presence in the child’s life. The court

also noted that Grandmother had done an exemplary job of providing a caring

and nurturing home for the child.

With regard to Husband, the court found that he was not an unfit parent.

Admittedly, he had ceded his parental prerogative to Grandmother oftentimes

throughout the child’s life, and he had continued to be enmeshed with Wife’s

struggles and addictions and used poor judgment as a result. However, he also

had established a stable business in South Carolina and maintained a very strong

bonded relationship with the child. Accordingly, the court found that

Grandmother had not shown by clear and convincing evidence that an award of

primary physical custody to Husband would cause the child to suffer physical

or significant, long-term emotional harm.

Because the best interests of the child resulted in a determination that

custody should be to both Husband and Grandmother, the court correctly

awarded them joint legal custody in the permanent parenting plan.

As the majority points out, “joint legal custody” is defined as “both

parents” having equal rights; the definition does not include a third-party

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relative, such as a grandparent. OCGA § 19-9-6 (5). However, such a strict

reading of the statue ignores OCGA § 19-7-1 (b.1)’s requirement that

“[n]otwithstanding . . . any other law to the contrary,” the “sole issue for

determination” “in any action involving the custody of a child between the

parents or either parent and a . . . grandparent,” is “what is in the best interest of

the child.” Here, “in determining the best interests of the child, the superior

court had to consider who among the parties would be more likely to provide

[the child] with the environment and consistent treatment [ ]he needed.”

Mauldin v. Mauldin, 322 Ga. App. 507, 518 (4) (745 SE2d 754) (2013).

According to the evidence presented to the trial court, the best interests of the

child mandated joint legal custody to Husband and Grandmother.

In our society, there has been a steady increase in the number of

grandparents raising their grandchildren. See Mary F. Radford, Ga.

Guardianship and Conservatorship § 2:5, n. 1 (2014) (citing a 2013 Pew

Research Center analysis of U. S. Census Bureau data, which revealed that about

7 million grandparents were living with grandchildren in 2011, a 22% increase

since 2000, and that the grandparent was the primary caregiver for about 3

million of these children); Kathleen Meara, What's in a Name? Defining and

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Granting a Legal Status to Grandparents Who Are Informal Primary Caregivers

of Their Grandchildren, 52 Fam. Ct. Rev. 128, 129 (2014) (citing a 2010 U. S.

Census Report, which found that more than 2.5 million grandparents are

responsible for their grandchildren). As I have previously recognized, “[i]n

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.” Clark, 273 Ga. at 602

(Hunstein, J., concurring). In light of this trend, it is impractical and

shortsighted to conclude that joint legal custody must be limited to 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.” Clark,

273 Ga. at 605 (Hunstein, J., concurring). And if those circumstances dictate

that joint legal custody between a parent and a grandparent is in the best interest

of the child, then awarding such custody should be an option. See Mauldin, 322

Ga. App. at 518 (affirming award of joint legal custody to the grandparents and

the father, primary physical custody to the grandparents, and visitation by the

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mother).6

I am particularly troubled by the practical outcome that results from the

majority’s opinion. As argued by the child’s guardian ad litem in this case, it

is in the best interest of the child that Grandmother be awarded custodial rights

because she has provided the only stable and secure home that the child has ever

known. Since the child’s birth, Wife has struggled with chronic, unrehabilitated

drug abuse and resulting legal problems; Husband has continued to be enmeshed

with Wife’s addiction struggles. For nearly the child’s entire life, both Husband

and Wife willingly, continually ceded parental responsibility to Grandmother.

From birth until he was eight, the Grandmother made all of the major decisions

for the child, including medical and religious decisions, enrolling him in her

school district, and ensuring his participation in extracurricular activities.

The trial court was correct in its finding that the absence of Grandmother’s

“legal and physical presence” would cause harm to the child. In so holding, the

trial court was logically precluded from any award of custody to Husband which

would simultaneously terminate Grandmother’s legal custodial rights as to the

6
As Mauldin evidences, I sincerely doubt that awarding joint legal custody to
a parent and grandparent is a unique occurrence for judges facing contentious custody
disputes.
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child. It is apparent from the trial court’s order that custody in Husband would

only be in the child’s best interest, and not cause long-term harm, if it were

predicated on the concurrent exercise of legal custody by Grandmother.

For all of these reasons, I must dissent. I urge the Legislature to

reconsider its limited definition of “joint legal custody” as stated in OCGA § 19-

9-6 (5). I would affirm the trial court’s award of joint legal custody to Husband

and Grandmother.

I am authorized to state that Justice Benham joins in this dissent.

Decided June 29, 2015.

Domestic relations. Gwinnett Superior Court. Before Judge Franzen, pro

hac vice.

Alan Mullinax & Associates, Alan Mullinax, Zachary R. Stepp, for David

E. Stone.

Anna Stone, pro se.

Lawrence L. Washburn III, for Webb.

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