The joy that a child brings to a parent is immeasurable. From the moment a child enters a parent’s life, a special love and bond is formed that lasts a lifetime. Thus, it is understandable that the pain caused from a parent losing custody of his or her child can be immense. Because of this, it is a serious undertaking for custody to be taken away. The law recognizes that a parent has a “rebuttable presumption” to custody. A parent’s right to custody of a child is a fundamental liberty interested protected by the United States Constitution. Because these rights are constitutionally protected, court require proof of unfitness to be supported by clear and convincing evidence.  

Georgia allows certain close relatives such as grandparents, aunts, uncles, and siblings, to bring a court action for child custody against one or both parents. This is a two-step process. First, the court must consider whether there is clear and convincing evidence of parental misconduct or inability. If so, the court then will consider whether termination of parental rights is in the best interest of the child. Under Georgia law:

“If a child is found under circumstances of:

  • destitution and suffering,
  • abandonment, or
  • exposure or
  • if the child has been begging or
  • if it is found that the child is being reared under immoral, obscene, or indecent influences which are likely to degrade his moral character and devote him to a vicious life

and it appears to the appropriate court by competent evidence, including such examination of the child as may be practicable, that by reason of the neglect, habitual drunkenness, lewd or other vicious habits, or other behavior of the parents or guardians of the child, it is necessary for the welfare of the child to protect the child from such conditions, the court may order that the parents or guardians be deprived of custody of the child and that appropriate measures as provided by law be taken for the welfare of the child.”

Under this statute, it is not enough to allege that the parent is struggling to provide for the child due to unemployment or poverty. It also is not enough to prove that the parent is engaging in immoral behavior, such as involvement in an affair, unless that behavior cases the parent to be unable or unwilling to care for the child. It similarly will not be enough to show that another party can provide superior care for the child. The court will only look to the actions of the parent in question to determine whether or not that parent is actually unfit.

If a case has been initiated against you concerning the custody of your child, please contact the attorneys at Vayman & Teitelbaum. We understand the difficult emotional time that this situation inevitably involves for all parties. Our attorneys will work with you and your family to ensure that the best resolution is met for all parties.