dissenting.
This case requires this Court to decide whether OCGA § 19-7-1 (b.l), which authorizes an award of custody to a nonparent upon a showing that such an award is in the best interest of the child, is constitutional. In my view, because it only considers the best interest of the child and fails to consider the fundamental rights of parents, this Code section cannot pass constitutional muster.
Under the Due Process Clause of the Fourteenth Amendment, and our state constitution, parents have a fundamental liberty interest and privacy right in raising their children without undue state influence. Brooks v. Parkerson, 265 Ga. 189 (454 SE2d 769) (1995). Thus, a parent’s right to the custody and control of his child is to be fiercely guarded and should be infringed upon only under the most compelling circumstances. Id.; In re Suggs, 249 Ga. 365, 367 (291 SE2d 233) (1982).
In Brooks at 190, this Court found the Georgia Grandparent Visitation Statute (OCGA § 19-7-3) unconstitutional under the state and federal constitutions. That statute permitted a grandparent to seek visitation “upon proof of special circumstances which make such visitation rights necessary to the best interest of the child.” In striking down the statute, this Court concluded that grandparent visitation does not clearly promote the health and welfare of a child, and that even if it did, the statute did not require “a showing of harm before state interference is authorized.” Id. at 194. Such a showing is necessary, we observed, because the state cannot impose visitation over a parent’s objection unless the failure to do so would be harmful to the child. Id.
If a statute awarding visitation to a nonparent is unconstitutional because it does not require a showing of harm to the child, then a fortiori, a statute awarding custody to a nonparent is unconstitutional if it does not require a showing of harm to the child. Inasmuch as OCGA § 19-7-1 (b.l) does not require a showing of harm, it must be deemed unconstitutional under our state and federal constitutions. Id.
That the legislature enacted OCGA § 19-7-1 (b.l) after this Court rendered the decision in Brooks, supra, does not demonstrate ipso facto its intention to comply with Brooks at that time. After all, fol*607lowing Brooks, the legislature amended the grandparent visitation statute, OCGA § 19-7-3, to require a showing of “harm”; yet it failed to include such a requirement in subsection (b.l). Why did the legislature fail to include such a requirement? Because it intended “to move Georgia law away from a strict ‘parental priority rights’ standard and toward an examination of the best interest of the child when custody is at issue.” 13 Ga. State Univ. L. Rev. (“Peach Sheet”), pp. 155, 157. In other words, the legislature concluded that, while Brooks required a showing of harm in a grandparent visitation case, such a showing was not necessary in a child custody case.72
My approach would be in accord with many jurisdictions which have considered this issue.73 And it is sound. Use of the best interest of the child standard alone would permit the state to deny parents custody of their children simply because a third party can offer a “better” financial or social environment for the children. To remove a child from the custody of a parent under such circumstances would be totally inappropriate. See Reno v. Flores, 507 U. S. 292, 303-304 (113 SC 1439, 1448, 123 LE2d 1) (1993) (“best interests of the child” standard is appropriate for deciding which of two parents will be given custody; but it cannot be used to give custody to third party so long as the child is provided for adequately). See also Worden v. Worden, 434 NW2d 341 (N.D. 1989) (in the absence of “exceptional circumstances,” a parent is entitled to custody of a child notwithstanding that a third party can provide better amenities); Barstad v. Frazier, 348 NW2d 479 (Wis. 1984) (it is improper for a court to interfere with an able parent simply because a third party would do a “better job” raising the child).
The legislature, of course, can provide for custody by a third party if such custody is in the best interest of the child and it is affirmatively shown that a child’s parent is unfit, unable or unwilling *608to care adequately for the child. Absent such a showing, however, a parent cannot be deprived of custody of his or her minor child.
Decided February 16, 2001 Reconsideration denied April 5, 2001.Case No. S00A1610
English, Tunkle & Smith, Richard Tunkle, for appellants. Campbell & Campbell, M. Steven Campbell, Susan C. Campbell, McDonald & Cody, Phillip G. Cody, Jr., for appellee. Vicky O. Kimbrell, Hannibal F. Heredia, Vicky L. Gribble, Lisa J. Krisher, Phyllis J. Holmen, Todd C. Hughes, Stephen R. Scarborough, amici curiae.Case No. S00A2014
Kutner & Bloom, Jean M. Kutner, David A. Webster, for appellants. Moulton & Massey, John W. Moulton, Kristine M. Tarrer, for appellee.The statute at issue fails to adequately consider the fundamental liberty interests of parents in custody cases. It is, therefore, unconstitutional.
I respectfully dissent. I am authorized to state that Justice Carley and Justice Hines join in this dissent.
The last sentence of subsection (b.l) makes this point plainly. It reads: “The sole issue for determination in any such case shall be what is in the best interest of the child or children.”
See, e.g., Ex Parte Terry, 494 S2d 628 (Ala. 1986) (parent has prima facie right to child custody absent showing of a forfeiture of parental rights or a finding of unfitness); Langerman v. Langerman, 321 NW2d 532 (S.D. 1982) (granting child custody to one other than a parent requires a showing of gross parental misconduct, unfitness, or extraordinary circumstances affecting child welfare); Sheppard v. Sheppard, 630 P2d 1121 (Kan. 1981) (statute which authorizes award of custody to third persons without a finding that parents are unfit is unconstitutional); In the Matter of Dickson v. Lascaris, 53 NY2d 204 (423 NE2d 361) (N.Y. 1981) (child custody by a parent may not be displaced in the absence of abandonment, unfitness or other like extraordinary circumstances); Henderson v. Henderson, 568 P2d 177 (Mont. 1977) (where third party seeks custody right, parent prevails -unless the child has been neglected or abused); Chandler v. Chandler, 535 SW2d 71 (Ky. Ct. App. 1975) (custody cannot be awarded to grandparent unless it is determined that child’s welfare would be better served). In fact, at least 38 states have adopted this “parental preference” principle. Stuhr v. Stuhr, 481 NW2d 212, 216 (Neb. 1992).