THIRD DIVISION

ELLINGTON, P. J.,

DILLARD and MCFADDEN, JJ.

NOTICE: Motions for reconsideration must be

physically received in our clerk’s office within ten

days of the date of decision to be deemed timely filed.

http://www.gaappeals.us/rules

October 22, 2015

In the Court of Appeals of Georgia

A15A1063. BRAWNER v. MILLER.

DILLARD, Judge.

In this custody dispute, Akintunde Brawner, the biological father of two minor

children, challengesthe trial court’s award of custody of the children to Oscar Miller,

the maternal grandfather. Specifically, Brawner contends that the trial court erred by

applying an incorrect legal standard in rendering its decision and in finding that the

children would suffer emotional harm if custody were awarded to him. For the

reasons set forth infra, we affirm.

Viewing the evidence in the light most favorable to the trial court’sjudgment,

1

the record shows that Brawner and Camease Miller were high school sweethearts. In

1

See, e.g., Mitcham v. Spry, 300 Ga. App. 386, 386 (685 SE2d 374) (2009)

(noting that when reviewing a child-custody decision, this Court views the evidence

presented in the light most favorable to upholding the trial court’s order).
2001, Camease became pregnant, and although she and Brawner were not married,

the couple moved into an apartment together before the April 2002 birth of their first

son, S. B. In 2004, Camease gave birth to the couple’s second son, M. B. But shortly

thereafter, Camease and Brawner’s relationship began to sour, and in 2006, they

separated and Brawner moved out of the apartment. Unable to financially maintain

the apartment on her own, Camease and the children moved into her father’s (Oscar

Miller’s) home, in which Camease’s two younger siblings also resided. 

Over the course of the next several years, Camease occasionally attempted to

live on her own, but for the vast majority of this time, she and the two boys lived with

her father and siblings. And during thissame time period, Brawner’sinteraction with

the children was sporadic at best, despite the fact that he lived only five blocks away

fromMiller’s home. In fact, Camease received the vast majority of assistance with the

boys from her father and her younger siblings, rather than Brawner. Additionally,

Brawner only occasionally paid child support after he and Camease separated. Indeed,

in 2011, the Superior Court of Fulton County held him in contempt for failure to pay

approximately $2,800.00 in child support. 

On July 3, 2013, Camease was the victim of a homicide. Two weeks later,

Brawner filed a petition seeking to legitimate the children and obtain custody.

2
Subsequently, Miller filed a motion to intervene, which the trial court granted, and

then filed an answer and counterclaim, in which he too sought custody of the boys.

After a brief discovery period, the trial court held an evidentiary hearing on the

matter, in whichBrawner, his parents, Miller, andCamease’ssiblingstestified. At the

conclusion of the hearing, the trial court granted Brawner’s legitimation petition, but

awarded custody of the children to Miller with permissive visitation to Brawner. And

shortly thereafter, the court issued its final order, confirming the ruling it had issued

fromthe bench. Brawner then moved for reconsideration,which the trial court denied.

This appeal follows. 

1. Brawner first contends that the trial court awarded custody of the children

to Miller without finding that he was unfit as a parent and, in doing so, applied an

incorrect legal standard. We disagree.

At the outset, we note that child-custody disputesinvolving a biological parent

and a limited number of third parties who are related to the child, including

grandparents, are governed by OCGA § 19-7-1 (b.1) (in accordance with the

fundamental constitutional right of familial relations),2 which provides that

2

See Strickland v. Strickland, 330 Ga. App. 879, 882 (1) (769 SE2d 607)

(2015) (“Parents have a constitutional right under the United States and Georgia

Constitutions to the care and custody of their children.”); Lopez v. Olson, 314 Ga.

3
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.

3

As this Court has previously recognized, the following three constitutionally based

presumptions

4

are to be used in construing the text of the foregoing statute: “(1) the

App. 533, 540 (3) (724 SE2d 837) (2012) (noting that the Supreme Court of Georgia

has “narrowly construed” OCGA § 19-7-1 (b.1) to “recognize parents’

constitutionally protected interest in the care, custody, and management of their

children.”).

3

 OCGA § 19-7-1 (b.1).

4

See Troxel v. Granville, 530 U.S. 57, 65 (II) (120 SCt 2054, 147 LE2d 49)

(2000) (plurality opinion) (“The liberty interest at issue in this case—the interest of

parentsin the care, custody, and control of their children—is perhapsthe oldest of the

fundamental liberty interests recognized by this Court.”); id. at 68 (II) (noting the

constitutional presumption that “fit parents act in the best interests of their

4
parent is a fit person entitled to custody, (2) a fit parent acts in the best interest of his

or her child, and (3) the child’s best interest is to be in the custody of a parent.”5 But

these presumptions can nonetheless be overcome by a third-party relative “showing,

by clear and convincing evidence, that parental custody would harm the child.”

6

children.”); Parham v. J. R., 442 U.S. 584, 602 (III) (99 SCt 2493, 61 LE2d 101)

(1979) (noting that the federal constitution’s “concept of the family rests on a

presumption that parents possess what a child lacks in maturity, experience, and

capacity for judgment required for making life’s difficult decisions,” and that “natural

bonds of affection lead parents to act in the best interest of their children.”); see also

2 St. George Tucker, Blackstone’s Commentaries with Notes of Reference to the

Constitution and Laws of the Federal Government of the United States and the

Commonwealth of Virginia 446 (Birch & Small 1803) (“The duty of parents to

provide for the maintenance of their children, is a principle of natural law.”); 2 James

Kent, Commentaries on American Law 169 (O. Halsted 1827) (noting that “[t]he

rights of parents result for their duties [to their children],” and “the law has given

them such authority”); John Locke, Second Treatise of Government, Ch. 6, § 71

(Hackett Publishing Co., Inc. 1980, originally published in 1690) (“This shews the

reason how it comes to pass, that parents in societies, where they themselves are

subjects, retain a power over their children, and have as much right to their

subjection, as those who are in the state of nature.”).

5 Trotter v. Ayres, 315 Ga. App. 7, 8-9 (2) (726 SE2d 424) (2011) (punctuation

omitted); accord Clark v. Wade, 273 Ga. 587, 593 (II) (544 SE2d 99) (2001)

(plurality opinion); Galtieri v. O’Dell, 295 Ga. App. 797, 798 (673 SE2d 300) (2009).

6 Trotter, 315 Ga. App. at 9 (2) (punctuation omitted); accord Clark v. Wade,

273 Ga. at 598-99 (IV) (plurality opinion); id. at 600 (Sears, J., concurring specially)

(noting that the plurality “ultimately reaffirms the principles of Brooks[v. Patterson]

by holding that disputes between parents and third parties concerning the custody of

the parents’ children must be resolved using the rigorous harm standard adopted in

Brooks.”); Galtieri, 295 Ga. App. at 798.

5
Specifically, harm in this particular context has been rigorously defined as “either

physical harm or significant, long-term emotional harm, not merely social or

economic disadvantages.”7 And once these presumptions have been overcome by

such a showing, the third-party relative must then “prove that an award of custody to

him or her will best promote the child’s health, welfare, and happiness.”8 Thus,

contrary to Brawner’s contention, in applying the legal standard set forth in OCGA

§ 19-7-1 (b.1), a trial court need not explicitly determine that “the parent seeking

custody is unfit[.]”

9 Rather, the court is instead required to determine that “the third7 Trotter, 315 Ga. App. at 9 (2) (punctuation omitted); accord Galtieri, 295 Ga.

App. at 798. Cf. Floyd v. Gibson, 331 Ga. App. 301, 303-04 (771 SE2d 12) (2015)

(physical precedent only) (vacating trial court’s judgment granting custody to

maternal grandmother for failure to make the requisite determination that the children

would suffer either physical harmor significant, long-termemotional harmif custody

was awarded to the father).

8 Trotter, 315 Ga. App. at 9 (2) (punctuation omitted); accord Galtieri, 295 Ga.

App. at 798.

9 Trotter, 315 Ga. App. at 9 (2); see also Boddie v. Daniels, 288 Ga. 143, 145

(702 SE2d 172) (2010) (holding that when “a third party seeks neither to terminate

parental rights nor break up a natural family by removing the child from her

biological parent’s custody, ‘federal constitutional law does not require a showing

that the parent is unfit before custody may be awarded to [the] third party.’”)

(punctuation omitted). Compare Quilloin v. Walcott, 434 U.S. 246, 255 (II) (A) (98

SCt 549, 54 LE2d 511) (1978) (expressing “little doubt” that the fundamental right

of familial relations would be violated if “a State were to attempt to force the breakup

of a natural family, over the objections of the parents and their children, withoutsome

6
party relative has established by clear and convincing evidence that awarding custody

to the parent would cause either physical harm or significant, long-term emotional

harm to the child.”

10 Accordingly, Brawner’s argument that the trial court erred by

awarding custody to Miller without an explicit finding of parental unfitness lacks

merit.

11

2. Brawner also contends that the trial court erred in finding that the boys will

suffer significant, long-term emotional harm if custody is awarded to him. Again, we

disagree.

showing of unfitness and for the sole reason that to do so was thought to be in the

children’s best interest.”). 

10 Trotter, 315 Ga. App. at 9 (2); accord Clark, 273 Ga. at 593 (II) (plurality

opinion).

11

It is important to emphasize that the present custody dispute is between a

parent who has not cared for his children in quite some time and a grandparent who

has commendably done so. In such cases, “the day-to-day bond of the parent-child

relationship already has been interrupted, and the child may have formed strong and

lasting relationships with the person who has been caring for him.” Clark v. Wade,

273 Ga. at 600 (Sears, J., concurring specially). In contrast, a custody dispute

involving a third party seeking to “break apart an intact parent-child relationship”

implicates even greater constitutional concerns . . . .” Id. Cf. Stone v. Stone, ___ Ga.

___, ___ (774 SE2d 681) (2015) (holding that “construing [OCGA § 19-7-1 (b.1)] as

authorizing the State to require a fit and capable parent to share custody of his child

with anyone except the child’s other parent would raise significant constitutional

concerns.”).

7
As the Supreme Court of Georgia has held when contemplating the issues of

harm and custody, a trial court must go beyond the parent’s biological connection or

present fitness and consider a variety of factors, including:

(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.

12

Here, as the trial court found in its thorough final order, the two children have

primarily lived with Miller since Brawner and Camease separated and have never

lived with Brawner. Indeed, as Miller testified, the boys consider Miller’s home to be

their home. In addition, the record showsthat the boys have a strong bond with Miller

and their aunt, and that the strength and compassion endemic of this bond have been

particularly important in the wake of their mother’stragic murder. Furthermore, since

the end of his relationship with Camease, Brawner has utterly failed to fulfill his

parentalresponsibility to assist in financially supporting his children to such an extent

that a court held him in contempt. But most importantly (given the constitutional

12 Clark, 273 Ga. at 598-99 (IV) (plurality opinion) (footnotes and punctuation

omitted); accord Boddie, 288 Ga. at 145; Lively v. Bowen, 272 Ga. App. 479, 484 (1)

(612 SE2d 625) (2005).

8
principles grafted onto the statutory regime at issue),13

 Brawner has interacted with

the boys only sporadically since he and their mother separated, visiting them

occasionally and attending only a few school events and extra-curricular activities

despite living a mere five blocks away from Miller.14 As Miller testified, and the trial

court reiterated, the boys are still struggling emotionally from the sudden and tragic

loss of their mother. And although they are beginning to heal from this severe

13

See Troxel, 530 U.S. at 65 (II) (plurality opinion) (“The liberty interest at

issue in this case—the interest of parents in the care, custody, and control of their

children—is perhapsthe oldest of the fundamental liberty interestsrecognized by this

Court.”); Blackburn v. Blackburn, 249 Ga. 689, 692 (2) (292 SE2d 821) (1982)

(acknowledging that “freedom of personal choice in matters of family life is a

fundamental liberty interest protected by the United States Constitution . . . .”);

Brooks v. Patterson, 265 Ga. 189, 191 (2) (a) (454 SE2d 769) (noting that the

Supreme Court of the United States has “long recognized a constitutionally protected

interest of parents to raise their children without undue state interference.”); In the

Interest of J. E., 309 Ga. App. 51, 62 (711 SE2d 5) (2011) (Dillard, J., dissenting)

(noting that “under both the United States and Georgia Constitutions, a parent has a

fundamental constitutional right to, and liberty interest in, the care, custody, and

management of his or her children, and that the State may not infringe upon or sever

this fiercely guarded right of familial relations except in the most compelling and

extraordinary of circumstances.”). 

14 Cf. In the Interest of E. G., 315 Ga. App. 35, 48 (726 SE2d 510) (2012)

(Dillard, J., concurring fully and specially) (“[I]t is one thing if a parent desires to

care for his or her child but simply lacks the financial wherewithal or emotional

capability to do so but quite another for a parent to willfully disregard or abandon his

or her parental duties.”); In the Interest of A. E. S., 310 Ga. App. 667, 671 (714 SE2d

148) (2011) (Dillard, J., concurring specially) (same). 

9
emotional trauma, the healing process will undoubtedly be harmed if they are, at this

point in time, uprooted from the only home they have ever known to live with a father

who, while perhaps well-meaning, has yet to build a meaningful relationship with

them. Given the particular and unique circumstances presented in the case sub judice,

and in view of the four factors prescribed by our Supreme Court (noted supra), as

well as the underlying constitutional principles (likewise noted supra), we conclude

that there was clear and convincing evidence to support the trial court’s conclusion

that the children will suffer significant, long-term emotional harm if the father is

given custody at this time.15

For all of the foregoing reasons, we affirm the trial court’s award of custody

to Miller.

Judgment affirmed. Ellington, P. J., and McFadden, J., concur.

15

See Lively, 272 Ga. App. at 484 (1) (holding that paternal grandmother

established by clear and convincing evidence in custody matter that child would

suffer significant, long-term emotional harm if she were returned to custody of her

mother).

10