FINAL COPY
294 Ga. 429

                   S13A1898. ENTREKIN v. FRIEDMAN.


      BLACKWELL, Justice.

      When Jay Allen Kaminsky and Diana Rene Entrekin divorced in 2009,

they agreed to a parenting plan by which they would share joint legal custody

of their son, but Kaminsky alone would have physical custody of the child. The

parenting plan also addressed the possibility that Kaminsky might not survive

the minority of the child, expressing the “desire of the parents” that Toby

Kaminsky Friedman — the paternal aunt of the child — have physical custody

in the event Kaminsky died. That parenting plan was approved by the court and

made a part of the final decree of divorce.

      On June 13, 2013, Kaminsky died. In the days following his death, various

members of his family — including Friedman — took custody of the child, and

they refused to give the child over to Entrekin. On June 18, Entrekin filed a

petition for a writ of habeas corpus, alleging that she was entitled to custody of

the child. Around the same time, Friedman filed her own petition for custody of

the child. Following a hearing, the trial court denied the petition for a writ of
habeas corpus, awarded temporary custody of the child to Friedman, and

allowed supervised visitation with the child to Entrekin. From the denial of her

petition for a writ of habeas corpus, Entrekin appeals, contending that the trial

court erred in two respects. We, however, see no error, and so, we affirm the

denial of the petition for a writ of habeas corpus.

       1. With respect to her first claim of error, Entrekin points to OCGA § 19-

9-24 (a), which provides that “[a] physical custodian shall not be allowed to

maintain against the legal custodian any action for . . . change of child custody

. . . so long as custody of the child is withheld from the legal custodian in

violation of the custody order.” Entrekin argues that she was entitled by

operation of law to custody of the child upon the death of Kaminsky, and

Friedman, therefore, could not properly be heard to seek custody of the child for

herself for so long as she was among the persons withholding the child from

Entrekin. We agree that Entrekin was entitled — at least presumptively — to

custody of her child following the death of her former husband.1 See OCGA §

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         Friedman argues that the final decree of divorce and the parenting plan incorporated
therein gave custody of the child to Friedman upon the death of Kaminsky. But the parenting
plan only expressed the “desire” of the parents at the time of the divorce that Friedman have
custody upon the death of Kaminsky. Such an expression cannot reasonably be understood
to amount to a definitive and binding directive as to custody of the child upon the death of

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19-9-2. But it does not follow that Friedman was barred from seeking custody

for herself. By its plain terms, OCGA § 19-9-24 (a) applies only when custody

of a child is withheld “in violation of [a] custody order.” Here, the only existing

“custody order” was the final decree of divorce, and it did not award physical

custody of the child to Entrekin. Accordingly, Friedman was not withholding

the child from Entrekin “in violation of [a] custody order,” and Friedman was

not, therefore, absolutely barred from pressing her own petition for custody of

the child.

       2. For her second claim of error, Entrekin contends that the trial court

erred when it determined that Friedman had overcome the legal presumption that

Entrekin should have custody of the child. As this Court has explained before,


the father. See School Dist. No. 69 of Maricopa County v. Altherr, 458 P2d 537, 544 (Ariz.
App. 1969) (“[T]he word ‘desire’ is an expression of present purpose rather than a promise
of future action.” (citations omitted)), disapproved on other grounds, Bd. of Trustees of
Marana Elementary School, Dist. No. 6 v. W ildermuth, 492 P2d 420, 422 (Ariz. App. 1972).
And in any event, our law generally disfavors judicial provision for a change of custody upon
the happening of some remote contingency without further judicial review at the time of the
change, see Scott v. Scott, 276 Ga. 372, 375-377 (578 SE2d 876) (2003), insofar as “children
are not immutable objects but living beings who mature and develop in unforeseeable
directions, [and] the initial award of custody may not always remain the selection that
promotes the best interests of the child.” Id. at 373. See also Johnson v. Johnson, 290 Ga.
359, 360 (721 SE2d 92) (2012). Accordingly, we accept that custody of the child following
the death of Kaminsky was not judicially determined by the final decree and the parenting
plan incorporated therein, and Entrekin was, therefore, presumptively entitled to custody.


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the presumption that a surviving parent is entitled to custody can be overcome

by clear and convincing evidence that the surviving parent is unfit. See

Columbus v. Gaines, 253 Ga. 518, 519 (322 SE2d 259) (1984); Wright v.

Hanson, 248 Ga. 523, 524 (2) (283 SE2d 882) (1981); Miele v. Gregory, 248

Ga. 93, 93-95 (2) (281 SE2d 565) (1981); Peck v. Shierling, 222 Ga. 60, 61-63

(148 SE2d 491) (1966). Here, the trial court found that Entrekin was, in fact,

“unfit to be the custodian of this child.” This finding, we conclude, is adequately

supported by evidence that Entrekin long had struggled with addictions to

alcohol and prescription drugs, that she previously had been convicted of

driving under the influence, that her driving under the influence had endangered

multiple children, that she had violated the terms of her probation, that she

recently had taken prescription pain medication but could not say definitively

that she had disclosed to her physician that she was a recovering addict, that she

had failed to seek relief from the provisions of the divorce decree that required

supervision of her visitation with the child, and that she was unaware of the

special needs of the child, notwithstanding that she had access to his school and

medical records. This evidence amounts to clear and convincing evidence of a

present unfitness to have custody of the child, and for that reason, the trial court

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did not err when it denied the petition for a writ of habeas corpus.2 See Harris

v. Snelgrove, 290 Ga. 181, 183-184 (2) (718 SE2d 300) (2011); White v. Bryan,

236 Ga. 349 (223 SE2d 710) (1976).

      Judgment affirmed. All the Justices concur.



                               Decided January 21, 2014.

               Habeas corpus. Chatham Superior Court. Before Judge Freesemann.

               Adam P. Cerbone, for appellant.

               Johnson, Kraeuter & Dunn, Kenneth P. Johnson, Robert S. Kraeuter,

for appellee.




      2
          We note that Entrekin does not contend that Friedman is unfit to have custody.

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