We granted this discretionary appeal to consider whether the trial court erred by denying a mother’s petition for modification of custody of her minor child. For the reasons set forth below, we affirm.
“If the record contains any reasonable evidence to support the trial court’s decision on a petition to modify custody, it will be affirmed.”
The mother testified that she experienced no difficulty visiting her child during the first two years the grandmother had custody.
In April 2002, the mother filed a petition to set aside the original custody order based on her attorney’s fraud and misrepresentation. Her petition failed because of the length of time that had passed since the order was first entered. There is no evidence that the mother appealed the denial of her motion to set aside the original custody order.
The mother contends the grandmother refused to allow her to see her child after she filed the petition to overturn the original custody order. As a result, in November 2002, the mother filed the petition for modification of custody at issue in the present appeal. She regained the right to visit her child after the parties entered into a temporary consent order in J anuary 2003, that outlined a visitation schedule. At the time the parties entered into the consent order, it had been eight months since the mother had last seen her child. Once the consent order was entered, the mother visited with her child every other weekend.
At the time of the hearing on the petition to modify custody, the mother had been married for over two years to a man with whom she had been living for three years before their marriage. They live in a four-bedroom home that he has owned for eight years. His 15-year-old daughter from a previous marriage lives with them part of the time and with her mother part of the time. Neither the mother nor her husband has a criminal history. The mother also completed a nurturing/parenting class and divorcing parents class.
The husband supports the mother’s effort to obtain custody of her daughter and has paid $6,000 to the mother’s attorney. The mother is a stay-at-home mom and the husband earns $41,000 per year working as a manager for Maaco Auto Painting, where he has been employed for over three years. The husband corroborated the mother’s testimony that the grandmother prevented visitation for an eight-month period after the mother tried to set aside the original custody order.
The grandmother testified that she initially became involved in this matter because the Department of Family and Children Services was in the process of removing the child from the parents’ custody. The grandmother’s son contacted her and asked her to help him keep his child. She paid $200 to the wife’s attorney for her son’s representation. The attorney did not represent her.
Contrary to the testimony of the mother and her husband, the grandmother testified that during the eight months that the mother
The grandmother opined that both of the child’s parents were unfit. She said that when they were together, they fought and used knives and guns. Nonetheless, the grandmother testified that she is comfortable with the child visiting her mother at this point in time and does not fear for the child’s physical safety when she is with her mother. In the grandmother’s opinion, the mother is not, however, emotionally stable and should not be awarded custody of the child. In her opinion, the child is happy and should be allowed to remain with her and visit with her mother.
The grandmother testified that the mother has paid less than $1,000 in child support since the grandmother was awarded permanent custody. The original order provided that the mother would pay “reasonable child support, but not less than 20% of [her] gross income.” The grandmother denied that she conditioned visits on the payment of cash. The grandmother maintained that she has always understood that she would have permanent custody of the child. She acknowledged that she had been awarded permanent custody without a hearing based on an order that was presented to the judge by the wife’s attorney.
The guardian ad litem testified that each time that the issue of the child’s removal from her grandmother’s custody comes up, the child becomes visibly anxious. Additionally, the child has told her on more than five different occasions that she wants to stay with her grandmother and visit her mother. The guardian ad litem testified that she understood that the child was physically neglected while she was in the custody of her parents and that when she asked the mother about the neglect, the mother explained that during that time she was without a home on several occasions. Regarding the transfer of custody to the mother, the guardian ad litem stated that she was concerned about more than the normal stress the child would experience in connection with such a change. Specifically, she was worried
The guardian ad litem opined that the child’s emotional problems surfaced when she began visiting with her mother again after her mother’s eight-month absence, which caused the guardian ad litem to recommend that the child begin treatment with a psychologist. The grandmother followed the recommendation.
In sum, the guardian ad litem testified that she believed it was in the best interest of the child to remain with the grandmother, with whom she has lived for over five years. She thought it would be better for the child emotionally and financially, and would also provide her with the sense of stability and security that she needs.
The trial court denied the mother’s petition for modification of custody by applying the standard set forth in OCGA § 19-7-1 (b.1). After reciting the facts before it and the factors outlined by the Supreme Court in Clark v. Wade,
1. On appeal, the mother contends the trial court erred because the grandmother failed to meet her burden of proving by clear and convincing evidence that the child would suffer physical or emotional harm if returned to her mother. We disagree.
In pertinent part, OCGA § 19-7-1 (b.1) provides that
*483 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.
The plurality opinion in Clark, however, found that OCGA § 19-7-1 (b.1), enacted in 1966, meets federal and Georgia constitutional standards only if the third party is required to show by clear and convincing evidence “that parental custody would harm the child...” and that “the award of custody to the parent is not in the best interest of the child.”
The superior court recited that it found “clear and convincing evidence of a real threat of physical and emotional harm to the minor child if returned to her biological mother.” In deciding whether the record supports the trial court’s finding of emotional harm, we are mindful that our Supreme Court in Clark expressly instructed that
a variety of factors____These factors should include: (1) who are the past and present caretakers of the child; (2) with whom has the child formed psychological 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.7
The trial court’s consideration of these factors is evidenced in its order. The trial court wrote:
[T]he minor child has lived with the paternal grandmother since September 1998. During that time, the child has developed a significant psychological bond and a very strong relationship, as evidenced by the love and affection that the minor child exhibits for the grandmother as well as the love and affection exhibited by the grandmother for the minor child.
It can be inferred from the trial court’s order that it considered and gave greater weight to the grandmother’s constant contact with and interest in the child, than to the mother’s. Immediately before concluding that there was evidence that the child would suffer long-term emotional harm, the trial court stated the following:
The biological mother had failed since September 1998 to provide consistent child support for the minor child and her employment status and ability to provide support for her and the minor child on a long-term basis is questionable. This failure of support is a physical and emotional danger to the minor child. Additionally, the stability that the child enjoys with the paternal grandparent is important to her emotional and psychological health. If the biological mother were to be unable to care for the minor child again, this would be a psychological and emotional danger to the child.
The guardian ad litem, after conferring with the psychologist, opined that the child would suffer emotional harm if returned to
2. Based on our conclusion in Division 1, we need not address whether the order which granted the grandmother permanent custody passed constitutional muster.
Judgment affirmed.
(Citation omitted.) Weickert v. Weickert, 268 Ga. App. 624, 627 (602 SE2d 337) (2004).
The psychologist did not testify.
273 Ga. 587 (544 SE2d 99) (2001). The factors outlined by the Supreme Court include: “(1) who are the past and present caretakers of the child; (2) with whom has the child formed psychological bonds and how strong are 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.” (Footnotes omitted.) Id. at 598-599.
Id. at 598, 599. Only two justices concurred fully, but Justice Sears’s special concurrence also approved of the “stringent harm standard set forth in the majority opinion.” Id. at 600. Justice Hunstein in her special concurrence argued that that statute would be constitutional without requiring a demonstration that parental custody would harm the child. The three dissenters argued that the stringent harm standard was not stringent enough to make the statute constitutional. Accord Jones v. Burks, 267 Ga. App. 390 (599 SE2d 322) (2004); Burke v. King, 254 Ga. App. 351 (562 SE2d 271) (2002); Stalvey v. Bates, 251 Ga. App. 895 (555 SE2d 477) (2001).
(Punctuation and footnote omitted.) Clark, supra at 598.
Id.
(Footnotes omitted.) Id. at 598-599.
There was no cross-appeal filed in the action, and the appellant did not enumerate as error the trial court’s allocation of the burden of proof.
As to the allocation of the burden of proof, see generally Durden v. Barron, 249 Ga. 686 (290 SE2d 923) (1982); Villenueve v. Richbourg, 217 Ga. App. 354 (457 SE2d 821) (1995).