The surviving parent of a five-year-old child brings this appeal from a Gwinnett Juvenile Court order granting temporary custody of his child to its maternal grandparents. Appellant contends the court erred in several particulars: (1) denying his custody request; (2) finding abandonment; and (3) terminating his parental rights.
As to the issue of custody, we begin our review of the facts with several principles that are firmly fixed in the law of this state. “Upon the death of either parent, the survivor is entitled to custody of the child; provided, however, that the court, upon petition, may exercise discretion as to the custody of the child, looking solely to the child’s interest and welfare.” OCGA § 19-9-2. “[W]here a surviving parent sues to obtain custody of his or her minor child from a third party who has physical, but not legal, custody of the child, the parent is entitled to custody unless it is shown by clear and convincing evidence that the parent has lost his right to parental custody and control by abandonment of the child or other legal ground.” Miele v. Gregory, 248 Ga. 93, 95 (281 SE2d 565) (1981). Here, the petition was brought by the maternal grandparents. However, the logic of Miele convinces us that the proof requirements should be no less when the petition is brought by a third party.
*88B. D. C. was born on August 24, 1980, while his parents, C. E. C. and W. J. C., were separated but not divorced. In the subsequent divorce, the mother was awarded custody of the child, and appellant was ordered to pay child support of $200 per month. The child has always lived with his maternal grandparents, H. H. and A. H., who have provided for clothing, food, shelter, and health needs. During the five-year period, appellant visited the child only once. This failure to visit was due in part to disputes with the maternal grandparents. Nevertheless, there is undisputed evidence that appellant failed to provide support during the years 1982, 1983, and 1984. During early 1985, garnishment proceedings were instituted against appellant for a child support arrearage. By agreement, the father paid a substantial portion of the arrearage and the remainder was to be paid in monthly installments over a specified period, beginning in August 1985. The mother died on August 3, 1985, and this petition for temporary custody was brought immediately thereafter by the maternal grandparents. At that time, appellant was still several thousand dollars in arrears in child support.
The standard by which we must measure appellant’s conduct is one of “clear and convincing” evidence. Miele v. Gregory, supra. It is in light of this requirement that we compare appellant’s conduct with the dictates of OCGA § 19-7-1 (b) (3), which states that parental power can be lost by “[fjailure to provide necessaries for the child or abandonment of the child.” In Sims v. Sims, 171 Ga. App. 99, 100 (318 SE2d 805) (1984), we found that “[i]n order to find an abandonment, there must be sufficient evidence of an actual desertion, accompanied by an intention to sever entirely, as far as possible to do so, the parental relation, throw oif all obligations growing out of the same, and forego all parental duties and claims. [Cits.]” While it is abundantly clear that during 1982, 1983, and 1984, the father completely failed to support the child, the evidence is not clear and convincing that he abandoned the child in 1985, the year in which the petition was filed. Quite the contrary, he paid $4,000 in support less than one month before the petition was filed. Since abandonment or a failure to provide necessities must be found as of the time the petition is filed, the evidence was insufficient to find abandonment or failure to provide necessities based on the record before us. Sale v. Leachman, 218 Ga. 834 (131 SE2d 185) (1963). Accordingly, the trial court’s award of custody to appellees must be reversed.
Contrary to appellant’s third enumeration of error, the trial court’s order did not terminate appellant’s parental rights. That being so, the third enumeration of error need not be addressed.
Judgment reversed.
Banke, C. J., Deen, P. J., Birdsong, P. J., Carley, and Sognier, JJ., concur. McMurray, P. J., Pope and Beasley, JJ., dissent.