Appellant, Louis Paul Miele, filed a petition for writ of habeas corpus in Wilcox County, Georgia, seeking the return of his minor child who was in the custody of the child’s maternal great aunt and great uncle.
Appellant is the only living parent of the child, the mother having died in October of 1979. Appellees, Gladys and Wendell Gregory, aunt and uncle of the child’s mother, claim appellant is not entitled to the custody of his child because he has forfeited his parental rights of custody and control by failing to provide necessaries for the child and by abandoning the child. See Code Ann. § 74-108 (a) (3).
The trial court, after a hearing, determined it had been shown by a preponderance of the evidence that appellant had abandoned the child and the court awarded custody to appellees. Appellant appeals. We have appellate jurisdiction of this case.
Bryant v. Wigley,
(1) Appellant contends the trial court erroneously admitted certain documents from the State of California, where appellant had previously resided. The only objection made to the admission of the documents at the time they were offered was that they were not timely offered. The trial court did not err in admitting the documents over that objection, and we will not now consider other bases of objection not made at trial.
(2) A surviving parent is prima facie entitled to custody of his or her child. Parental right to custody may be lost in a habeas proceeding if one of the conditions specified in Code Ann. §§ 74-108,
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74-109, or 74-110 is found to exist, or if the parent is found to be unfit.
Mathis v. Nicholson,
Abandonment is a statutory ground for the forfeiture of the parental right to custody and control of a minor child. Code Ann. § 74-108 (a) (3). The trial court in this case read
Shaddrix v. Womack,
We cannot agree that Shaddrix suggests such a rule. One of the statutory grounds for the loss of parental power is a “Voluntary contract, releasing the right to a third person. ” Code Ann. § 74-108 (a) (1). In Division (3) of the Shaddrix opinion, we stated: “It is well established that the terms of such a gift or contract must be definite and unambiguous and must be established by clear and satisfactory proof.”
Furthermore, we have positively held that abandonment must be shown by more than a preponderance of the evidence: “When the mother of the child is dead, the father has the prima facie right of custody, and in order to sustain the contention that he lost the parental power by reason of failure to provide necessaries for his child or by abandonment of his family, a clear and strong case must be made.”
Roebuck v. Calhoun,
The various expressions used to describe the standard (“clear and strong,” “clear and satisfactory,” “substantial and convincing,” and “clear and convincing”) mean the same thing. McCormick on Evidence, § 340, p. 796 (2d Ed. 1972). We hold that where 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. The trial court erred in using a preponderance of the evidence standard to evaluate the evidence of abandonment.
(3) Appellant contends the trial court erred in considering reports from the Fulton and Wilcox County Departments of Family and Children Services as evidence in deciding the case. The Fulton report contained an evaluation of the Miele home; the Wilcox report contained an evaluation of the Gregory home. Both reports were favorable and both homes were recommended as suitable for the child. The reports were made available to both parties. The author of the Fulton report testified at the custody hearing.
It is error for a trial court to consider a report from a county Department of Family and Children Services to decide child custody,
Camp v. Camp,
In this case, appellant objected to the consideration of the reports by the court. The court erred in considering them. Since our holding in Division (2) of this opinion requires reversal of this case we need not decide whether the error was harmless. See,
In the Interest of M. A. C,
Judgment reversed and case remanded for further proceedings not inconsistent with this opinion.
Notes
This loss of the right to parental custody and control is to be distinguished from a termination of the parent-child relationship. Code Ann. § 24A-301 (a) (2)
(C);Dein v. Mossman,
We point out that a habeas court is authorized by Code Ann. § 24A-302 (b) to transfer the question of child custody to the juvenile court for investigation and determination.