dissenting.
Today, the majority holds that a parent’s selection of a person to care for his child when he is no longer able to do so is subject to attack by a third party based upon a best-interest-of-the-child standard. Because this holding threatens to do serious damage to the fundamental relationship between a parent and his child, conflicts with recent precedent of this Court, and has far-reaching and potentially devastating implications for the families of this State, I must dissent.
1. “Bad facts make bad law,” and this case has bad facts: The father of the child has been incarcerated for the child’s entire life for committing numerous felonies and misdemeanors; the child’s mother has died; the child’s maternal grandmother has died; and the child’s relatives have engaged in contentious litigation regarding custody of the child. The ramifications of the majority’s decision, however, will reach far beyond the “bad facts” of this particular case. Although this case involves an imprisoned father who has had little contact and virtually no relationship with his son, the majority’s decision will equally affect any father who has devoted many years of effort to support and rear his child. Similarly, although the father in this case transferred his parental power because of his imprisonment, the majority opinion will equally affect a father who is suffering from a chronic or fatal disease and is forced by those circumstances to choose someone else to care for his child while he is still alive. It will also equally affect and open to second-guessing every decision made by a father designating a guardian in a will to care for his child after his death. Thus, in a case involving bad facts and a parent who might eventually lose his parental rights (but who has not yet been deemed unfit),22 the majority today issues an opinion that will significantly and detrimentally impinge on one of a parent’s most sacred decisions — who will take care of his child when the parent can no longer do so.
2. The majority concludes that a third party’s challenge to a parent’s selection of a guardian or custodian for his child must be determined based upon the best interest of the child, only giving the par*653ent’s selection of a guardian consideration within the confines of that determination.231 would follow recent precedent of this Court to conclude that the parent’s selection of a custodian or guardian must control unless the child would be harmed by doing so.
The United States Supreme Court has recently reiterated that the liberty “interest of parents in the care, custody, and control of their children ... is perhaps the oldest of the fundamental liberty interests recognized by [the Supreme Court].”24 At issue in Troxel v. Granville was a State of Washington statute that permitted any person to petition a “ ‘court for visitation rights at any time’ ” and that permitted the court to grant such visitation as “ ‘may serve the best interest of the child.’”25 The statute accorded no presumption of validity and gave no weight to the parents’ decision regarding whether visitation was in the child’s best interests. The Supreme Court described the statute as “breathtakingly broad,”26 and concluded that it was significant that the grandparents seeking visitation in that case did not allege that the parent was unfit, as “there is a presumption that fit parents act in the best interests of children.”27 Because of the breadth of the Washington statute and because the superior court in the State of Washington did not give any “material weight” to the parent’s visitation decision in awarding grandparent visitation, the Supreme Court held that the Washington statute, as applied, unconstitutionally infringed on the parent’s “fundamental right to make decisions concerning the care, custody, and control of her two daughters.”28 Because of the foregoing holding, the U. S. Supreme Court held that it was unnecessary for it to decide “whether the Due Process Clause required all nonparental visitation statutes to include a showing of harm or potential harm to the child as a condition precedent to granting visitation.”29
Although the Supreme Court in Troxel concluded that it was not necessary for it to decide whether due process required a showing of harm to a child before a nonparent visitation statute could be constitutional, this Court has held that such a requirement is necessary. In Brooks v. Parkerson,30 this Court reviewed our own grandparent visitation statute. We concluded that under our state “constitutional pro*654tections of liberty and privacy,”31 “ ‘[t]he right to the custody and control of one’s child is a fiercely guarded right in our society and in our law. It is a right that should be infringed upon only under the most compelling circumstances.’”32 We concluded that our grandparent visitation statute was unconstitutional because “even assuming grandparent visitation promotes the health and welfare of the child, the state may only impose that visitation over the parents’ objections on a showing that failing to do so would be harmful to the child.”33
Although the present case involves a parent’s decision regarding who will care for his child when he is no longer able to do so, and not the right of a third person to visit with a child in a parent’s custody, as in Troxel and Brooks, the same fundamental concerns are implicated by this case. There are few more monumental decisions for a parent regarding the care of his child than the selection of who will care for his child when he is no longer able to do so. Moreover, generally, there is no person, including any trial or appellate judge, who is better able to evaluate the persons best suited to be a guardian for a child than the child’s parents. As has been so eloquently stated:
No person is in a position to know as well who should have the custody of children as the surviving parent. . . . He has observed them throughout their lives. By daily contact he knows their temperaments and habits, and by observation he knows those who have evidenced the greatest interest in his children, and those whose moral and spiritual values are in his judgment conducive to the best interests of his children. A judge treads on sacred ground when he overrides the directions of the deceased with reference to the custody of his children.34
For these reasons, I believe the majority commits grievous error by permitting a parent’s selection of a guardian to be overridden based upon a best-interest-of-the-child standard. I would adopt the same standard we did in Brooks, and require that a parent’s right to decide who should care for his child when he cannot do so should not be infringed except when harm to the child will result from honoring the parent’s selection. In this regard, I would hold that if the person designated by the parent is unfit, then the parent’s choice would harm the child and the parent’s decision would not be entitled to any deference. Moreover, the rule I propose is not “inconsistent with contem*655porary recognition of children as individuals whose best interests, welfare and happiness are entitled to protection.”35 Rather, my position simply recognizes a child’s profound and unique relationship with his family; that a parent and not a third party, a court, or a government is in the best position to judge a child’s best interests; and that a parent has a fundamental right to direct and control the care of his child.
The majority also states that my reliance on Brooks is misplaced because the standard established in Brooks has never been applied to a custody dispute, but was only applied in determining the constitutionality of our Grandparent Visitation Statute.36 Visitation rights, however, have always been considered a part of custody in this State.37 In fact, the majority overlooks the fact that it relies on the Georgia Child Custody Intrastate Jurisdiction Act of 1978 (“the Act”),38 and that that Act defines custody to include visitation. Accordingly, my reliance on Brooks in the present case is appropriate.
3. Furthermore, relying essentially on Alvarez v. Sills39 and the definition of “legal custody” contained in the Act, the majority concludes that recent developments in the law justify determining the present custody dispute using the best-interest-of-the-child standard. Alvarez and the Act, however, are simply inapposite to the present case.
In Alvarez, the mother of twin daughters transferred custody of the daughters to her aunt by way of a voluntary agreement. The mother later brought a petition for habeas corpus, contending that under the terms of the agreement, the aunt had to transfer custody of the girls back to the mother. The aunt contended, on the other hand, that she had “legal custody” as defined under the Act,40 and that because the Act prohibited actions in the nature of habeas corpus seeking a change of custody, the mother’s petition for habeas corpus was barred. In this regard, the Act defined “legal custody” as custody awarded “by a court order.” This Court held that the aunt had custody under an agreement, that she did not have “legal custody” as defined under the Act, and that therefore the prohibition against habeas petitions contained in the Act did not apply.
The majority errs in relying on Alvarez and the definition of “legal custody” contained in the Act. First, the purpose of the Act is to *656“[a]void jurisdictional competition and conflict by courts within this state in matters of child custody”;41 to “[a]void relitigation of custody decisions of other courts in this state insofar as is feasible”;42 and to “[flacilitate the enforcement of custody decrees.”43 Thus, the Act was never intended to address anything other than court-ordered custody, and the Act’s definitions are irrelevant in determining principles that should apply in resolving disputes when a parent has chosen another person to care for his child.
Moreover, Alvarez involved a dispute between a parent and the person to whom the parent had transferred custody by agreement, and, for this reason, Alvarez did not set forth any principles that apply when a parent selects a guardian for his child and another person attempts to overturn the parent’s selection. Most importantly, contrary to the implications in the majority opinion, Alvarez did not hold that a person selected by a parent to have custody of the parent’s children does not have a legal right to custody. If the aunt in Alvarez did not have a legal right to custody as a result of the agreement, this Court would not have directed that on remand the aunt could seek to prove that she had a right to custody under the terms of the agreement with the mother.44 Although the aunt in Alvarez did not have a superior right to custody in relation to the mother of the children, she did have rights that arose by virtue of the agreement, and, if the agreement were interpreted in her favor on remand, she had the right to custody of the children.
Ironically, then, Alvarez actually supports the proposition that the paternal grandmother in the present case has a superior right to custody compared to the child’s uncle. As did the aunt in Alvarez, the paternal grandmother in this case should be considered to have a right to custody by virtue of the agreement with the child’s father. On the other hand, the child’s uncle has no concomitant right to custody.
Moreover, to the extent that the “recent developments” on which the majority relies require a custody dispute between a third party who has been chosen by a parent as a guardian and a third party who challenges that selection to be resolved by looking to the best interest of the child, those recent developments are unconstitutional under our holdings in Brooks45 and Fowler 46 The public policy of this State is created by our Constitution, our statutes, and our judicial decisions.47 Brooks and Fowler established the meaning of our constitu*657tion with regard to a parent’s right to control the care and custody of his children. The “recent developments,” as interpreted by the majority, contravene that public policy and therefore should not be relied upon to support the majority’s holding in this case.
Furthermore, the majority reasons that because custody disputes between parents are resolved based upon the best interest of the child, that same standard must be applied to the present case.48 “Otherwise the law would protect a child more in a custody dispute involving his or her own parent than in one involving non-parents.”49 In labeling this case as one involving “non-parents,” the majority conveniently, erroneously, and unconstitutionally excises the parent from the custody equation. When, as here, a parent chooses a third party to care for his child and another third party challenges the parent’s decision, the third party chosen by the parent stands on superior footing to the other third party, as the parent has a fundamental right to direct who should care for his child if he cannot do so. Therefore, when a parent selects a third party to care for his child and another third party challenges that selection, the dispute is not between two third parties, but between the parent and the third party who challenges the parent’s selection. The third party challenging the parent’s decision does not stand on the same footing as the parent and should not be able to defeat the parent’s decision based upon a best-interest-of-the-child standard. Thus, it is entirely reasonable to resolve such custody disputes by permitting the third party challenging the parent’s selection to prevail only if he can show that the parent’s selection will harm the child. On the other hand, in custody disputes between parents, it is appropriate to apply the best-interest-of-the-child standard, as the parents stand on equal footing concerning their interests in the child.
Finally, to support its holding that “a determination of custody is to be made according to the best interest of the child even where there exists an agreement by which a parent of the child has transferred parental power to one of the parties seeking custody,”50 the majority relies on Connor v. Rainwater.51 In Connor, however, this Court specifically did not address the issue mentioned in the majority opinion:
In view of the imperfectly established right of the mother to contract with a third person for custody and adoption of the child, it is not necessary in this case to pass on the question *658of whether or not a third person, having a valid contract with the parent or parents exercising all of the parental power under the law, can, in the absence of proof of her unfitness to rear the child, be denied an award of custody of the child on a habeas corpus action.52Decided July 10, 2000 Reconsideration denied July 28, 2000. Husser, Gammage & Frazier, Genevieve L. Frazier, for appellants. Bernadette C. Crucilla, Robert E. Turner, for appellees. Kutner & Bloom, Jeanney M. Kutner, H. William Sams, Jr., amici curiae.
4. Although I recognize that the majority opinion is benevolent in intent, I conclude that the majority’s holding is flawed and will only ultimately lead to rifts in families by pitting one relative against another in custody battles over children who have lost their parents and are in desperate need of stability in their lives. Moreover, as I have demonstrated, the majority fails to give proper deference to a fit parent’s right to select the person who will care for his child if he is unable to do so. Because I believe that this decision will have negative repercussions for the parents and children and families of this State, I respectfully dissent.
I am authorized to state that Justice Carley joins in this dissent.See Division 3 of the majority opinion.
Majority opinion at 651.
Troxel v. Granville, 2000 WL 712807, 5 (Case No. 99-138, decided June 5, 2000).
Troxel, 2000 WL at 6, quoting Section 26.10.160 (3) of the Revised Code of Washington.
Troxel at 6.
Id. at 7.
Id. at 9.
Id.
265 Ga. 189 (454 SE2d 769) (1995).
Brooks, 265 Ga. at 192.
Brooks, 265 Ga. at 192 (quoting In re Suggs, 249 Ga. 365, 367 (291 SE2d 233) (1982)).
Id. at 194. Accord Fowler v. Knebel, 266 Ga. 317 (467 SE2d 177) (1996).
Comerford v. Cherry, 100 S2d 385, 390 (Fla. 1958).
Majority opinion at 650.
Majority opinion at 651.
Wrightson v. Wrightson, 266 Ga. 493, 496 (467 SE2d 578) (1996); Prater v. Wheeler, 253 Ga. 649 (322 SE2d 892) (1984).
See OCGA §§ 19-9-21 to 19-9-24.
258 Ga. 18 (365 SE2d 107) (1988).
See OCGA §§ 19-9-23 (a), (b); 19-9-22 (2).
OCGA § 19-9-21 (a) (1).
OCGA § 19-9-21 (a) (6).
OCGA § 19-9-21 (a) (7).
Alvarez, 258 Ga. at 19, n. 1.
Brooks, 265 Ga. at 194.
Fowler, 266 Ga. at 317.
Porubiansky v. Emory Univ., 156 Ga. App. 602, 604 (275 SE2d 163) (1980).
Majority opinion at 650.
Id.
Majority opinion at 649.
200 Ga. 866 (38 SE2d 805) (1946).
Id. at 871.