- Parties were divorced and custody of the child was awarded to maternal grandparents. Husband then remarried and filed a modification requesting custody claiming he could now provide a stable home for the child.
- Once custody is awarded to a third party in an action to which a parent was a party, the roles of the parent and third party reverse, so that the third party has prima facie right to custody. Parent can regain custody only by showing clear and convincing evidence of present fitness as a parent and that a change of custody is in best interest of child.
- Here, the court found that Husband had shown clear and convincing evidence of his present fitness but failed to show by clear and convincing evidence that a change in custody was in the child’s best interest.
- When the issue in a modification proceeding is that of present fitness, the conduct of the parents before the divorce is immaterial, and evidence as to unfitness must be confined to matters transpiring subsequent to the divorce. However, where the best interest of the child is concerned, a judge may consider any relevant factor, such as stability of family unit and continuity. Therefore, it was not error for the trial court to consider the Husband’s two prior short-lived marriages when determining the best interest of the child.