                               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, challenges the 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’s judgment,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 this same time period, Brawner’s interaction with

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

from Miller’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 which Brawner, his parents, Miller, and Camease’s siblings testified. 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

from the 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 disputes involving 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

presumptions4 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
parents in the care, custody, and control of their children—is perhaps the 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 third-


      7
       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 harm or significant, long-term emotional harm if 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, without some

                                           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 shows that 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’s tragic murder. Furthermore, since

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

parental responsibility 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 perhaps the oldest of the fundamental liberty interests recognized 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
