This is an appeal by the mother from an award of the parties' minor children to the father. We granted an application for discretionary review in order to consider the principal issue as to whether the trial judge properly utilized a psychological evaluation of the parents and a summary prepared by the Department of Family and Children's Services in order to determine custody, while denying the mother access to this information. Held:
On similar facts, the Supreme Court has pronounced the legal maxim: " '. . . . It is error . . . for the issue of child custody to be decided on the basis of [a report of the juvenile court] where either parent is denied access to the report and is thereby denied a hearing and the right to examine witnesses in an effort to refute the report.' That rule of fundamental fairness applies with equal force to reports such as that of the Department of Family & Children Services at issue here. Therefore, in the absence of waiver, it was error for the issue of child custody to be decided on the basis of a report of the Department of Family & Children Services where the losing parent was denied access to that report." McNabb v. Carver, 242 Ga. 526
, 528 (250 SE2d 447
) (1978). Accord, Anderson v. Anderson, 238 Ga. 631 (235 SE2d 11) (1977)
; Westmoreland v. Westmoreland, 241 Ga. 552 (246 SE2d 672) (1978)
. Compare In the Interest of J. C., 242 Ga. 737
, 740 (251 SE2d 299
It was error to decide the issue of child custody on the basis of information access to which was denied the opposite party.
Vicky O. Kimbrell, Lisa J. Krisher, Mary Carden, James L. Cromartie, Jr., for appellant.