Opinion
38148.
DECIDED MAY 4, 1982. REHEARING DENIED JULY 1, 1982.
Certified questions from the Court of Appeals of Georgia.
Groover Childs, Denmark Groover, Jr., Frank H. Childs, Jr., for appellant.
J. Alton Gladin, Lawton Miller, Jr., for appellees.
The Court of Appeals has certified the following questions to this court: "1. Where custody of a child has been awarded to one other than its natural parent by a court order which has become final, in a subsequent custody contest between the third party and the parent, is the parent entitled to custody unless it is shown by clear and convincing evidence that such parent is unfit or otherwise not entitled to custody under the law? See Carvalho v. Lewis, 247 Ga. 94 [( 274 S.E.2d 471)]; Wigley v. Bryant, 247 Ga. 487 ( 277 S.E.2d 246).
"2. If the first question is answered in the negative, where a third party has been awarded permanent custody of a child, may a parent obtain custody by showing a change of conditions affecting the welfare of the child? See Robinson v. Ashmore, 232 Ga. 498, 500 ( 207 S.E.2d 484); Gazaway v. Brackett, 241 Ga. 127, 129 ( 244 S.E.2d 238); Higbee v. Tuck, 242 Ga. 376, 377 ( 249 S.E.2d 62)."
1. It is now settled that, in a custody contest between a parent and third party, the parental right to custody may be lost only if by clear and convincing evidence one of the conditions specified in Code Ann. §§ 74-108, 74-109, or 74-110 or parental unfitness is shown to exist. Miele v. Gregory, 248 Ga. 93 ( 281 S.E.2d 565) (1981); Gazaway v. Brackett, supra at 129. This rule presupposes an existing parental right to custody vis a vis the third party. It is thus inapplicable to a parent who has lost the parental right to custody.
Where a parent was a party to a proceeding in which his or her right to custody was lost and custody was permanently awarded to a third party, the parent does not have a prima facie right to custody. Accordingly, the first certified question is answered in the negative.
2. Once a third party has been awarded permanent custody of a child in a court proceeding to which a parent was a party, the roles of the parent and the third party reverse; that is, the third party now has the prima facie right to custody as against the parent who has lost the right to custody. The parent can regain custody upon showing by clear and convincing evidence his or her present fitness as a parent and that it is in the best interest of the child that custody be changed. Anything to the contrary in Robinson v. Ashmore, 232 Ga. 498 ( 207 S.E.2d 484) (1974) and its progeny is hereby overruled.
The second certified question as posed in answered in the negative.
Certified questions answered in the negative. All the Justices concur.