This month, I review cases from earlier in 2018, since the Georgia appellate courts released no new family law related cases in November. From the months before I began publishing these case law updates, I have selected a handful of cases that have an important impact on our custody practices. Enjoy!
Patten v. Ardis, 304 Ga. 140 (2018)
Facts:
Patten married Ardis’ son, who died shortly after Patten became pregnant with his child. Ardis filed a petition for grandparent visitation pursuant to O.C.G.A. §19-7-3(d). Patten asserted that Subsection (d) is unconstitutional and moved to dismiss the petition. The trial court ruled that the subsection is constitutional, found that visitation with Ardis is in the child’s best interests, and granted Ardis’ motion for visitation. Patten appealed.
Holding:
Subsection (d) of O.C.G.A. §19-7-3, which authorizes grandparent visitation for parents of deceased, incapacitated or incarcerated parents of their grandchildren, is unconstitutional. The subsection violates a fit parent’s fundamental right to the care, custody and control of his or her children by allowing, over a parent’s objections, a court to grant visitation to a grandparent without clear and convincing evidence of harm or imminent harm to the child. Thus, the case was reversed, and remanded. On remand, the trial court must determine whether Ardis is entitled to visitation under Subsection (c) of O.C.G.A. §19-7-3, which requires clear and convincing evidence that denying the grandparent visitation harms, or will harm, the health or welfare of the child, and that the visitation will be in the best interests of the child. This opinion provides a good historical review of the evolution of the law as it relates to the parents’ rights to the care, custody and control of their children.
Bowman v. Bowman, 345 Ga. App. 380 (2018)
Facts:
The parties were married in Georgia and their first child was born here. In 2012, the family moved to Michigan, where the second child was born. Thereafter, they moved to Wisconsin for a year before the Husband moved to Indiana, and the Wife returned to Michigan for a month. In November, 2015, Husband and Wife brought the children for a visit to Georgia, with the intention of returning to the Midwest. Instead, while in Georgia, Wife filed an emergency ex parte motion for custody of the children and the trial court granted temporary custody to her. Husband contested jurisdiction in Georgia and filed for divorce in Michigan. The Michigan court determined that it did not have jurisdiction. Father appealed, and the Michigan trial court’s ruling was affirmed. The case, however, was remanded since the trial court never communicated with the Georgia trial court before its ruling. Shortly thereafter at a hearing in Georgia, the parties stipulated that neither Georgia nor Michigan was the “home state” for the children under the UCCJEA. The trial judges from both states spoke, and agreed that the children had significant connections to both states, and that jurisdiction was proper in Georgia. Thus, the trial court ruled that the children’s significant connections with Georgia warranted its exercise of jurisdiction, and that the Wife did not improperly file the ex parte motion for custody. Husband filed an interlocutory appeal contesting jurisdiction.
Holding:
Reversed. Initially, the Court rejected Husband’s argument that the trial court erroneously exercised emergency jurisdiction. The Court explained that there was no reversible error because even if the trial court had no basis to exercise emergency jurisdiction, it did have jurisdiction under O.C.G.A. §19-9-64 to make an initial custody determination. The Court also rejected Husband’s argument that the trial court should have declined jurisdiction because of Wife’s alleged misconduct in invoking emergency jurisdiction with no basis.
The Court of Appeals, however, held that the trial court erred in exercising jurisdiction under the UCCJEA based on its finding that the children had more significant connections to Georgia than Michigan. Since neither state qualified as a “home state” under the UCCJEA, the trial court could obtain jurisdiction to make custody determinations under O.C.G.A. §19-9-61(a)(2) if the children and at least one parent have significant connections with Georgia, and substantial evidence is available in the state regarding the children. This determination must be made as of the time the petition for custody is filed. Conduct occurring later is not considered. In the instant case, the only connections to Georgia at the time Wife filed her petition were that Wife was born in Georgia and her parents and other family still lived here; one child was born in Georgia; and the children had visited with family in Georgia in the past. The children’s mere physical presence in Georgia for less than 30 days before Wife filed her petition did not establish sufficient significant connections to warrant the trial court’s exercise of jurisdiction.
Edler v. Hedden, 344 Ga. App. 628 (2018)
Facts:
Hedden had primary physical custody of the parties’ children. In December, 2015, one child, EE, elected to live primarily with Edler, and custody was modified to honor her election. A few months later, Hedden filed a petition to modify custody based on EE’s affidavit electing to return to her custody. The trial court granted the request and Edler appealed.
Holding:
The issue on appeal is the interpretation of the portion of OCGA § 19-9-3(a)(5) that provides that a child’s election to live with a parent “may only be made once within a period of two years from the date of the previous selection.” The Court of Appeals held that the legislature intended for a child’s election to be effective for two years from the date of the previous election. Thus, after her December 2015 election to live with Edler, EE could not elect to return to Hedden’s custody until December 2017. Accordingly, the trial court erred, and should have dismissed Hedden’s petition.
Huff v. Vallejo, 817 S.E.2d 696 (Ga. App. 2018)
Facts:
In 2014, Vallejo legitimated twins he fathered with Huff. At the time, he was facing misdemeanor charges, and Huff alleged that he was also guilty of other charges, including rape. The trial court granted temporary joint legal custody to both parents with primary physical custody to Huff and supervised visitation for Vallejo. A few months later, Vallejo filed a contempt action against Huff for denying the supervised visitation. Before the hearing, he was detained by Immigrations and Customs Enforcement because of questions regarding his immigration status, but he posted bond, and with the help of Huff’s family, he was pursuing legal action to remain in the United States. The trial court held Huff in contempt, and modified Vallejo’s visitation so that it was unsupervised. Huff appealed, contending that it is in the children’s best interests for visitation to remain supervised until Vallejo’s criminal and immigration cases are finalized.
Holding:
Affirmed. Huff failed to include the trial transcript in the appellate record, and thus, the Court must assume that the trial court was authorized to modify the visitation to unsupervised if there was any evidence to support the trial court’s decision. The pending criminal charges and immigration case, standing alone, are not enough to establish that the trial court abused its discretion.
Wilson v. Perkins, 344 Ga. App. 869 (2018)
Facts:
Wilson had primary custody of the minor child, and Perkins had visitation. In 2014, Wilson was arrested on charges of family violence and battery against the minor child. He pled no lo contendere to the charges. The parties subsequently entered into an agreement which was made the order of the court on June 3, 2015, that provided for joint legal and physical custody. Shortly thereafter, Wilson was arrested on unrelated charges that were subsequently dropped and expunged from his record. On June 15, 2015, while Wilson was still incarcerated, Perkins filed a petition to modify custody. At trial, over Wilson’s objections, the trial court admitted evidence of Wilson’s no lo contendere plea, as well as evidence of the alleged family violence leading to the plea (denied by Wilson). The trial court found that there had been a material change of circumstances since the June 3, 2015 order, and terminated Wilson’s visitation. Wilson appealed.
Holding:
Reversed. The trial court erred in admitting Wilson’s no lo contendere plea. The trial court admitted the plea only for the purposes of explaining Perkins’ conduct. However, a no lo contendere plea cannot be used against a defendant as an admission of guilt, or for any purpose. Furthermore, the alleged abuse leading to the plea occurred prior to June 3, 2015, the date of the last final order. Since there were no material changes in circumstances affecting the welfare of the child since the June 3, 2015 order, the trial court abused its discretion in modifying the visitation. Finally, the Court concluded that at least a portion of the attorneys fees awarded to Perkins were not authorized, so the case was remanded for reconsideration of the fees.
O’Dwyer v. Schuller, 345 Ga. App. 495 (2018)
Facts:
The parties had joint legal custody of their minor children with O’Dwyer having primary physical custody and Schuller having secondary physical custody. After O’Dwyer graduated from college, the parties informally agreed to flip the custody arrangement while she established her career. Two years later, Schuller filed a modification action to formalize the arrangement. The trial court granted Schuller’s petition, and this appeal followed.
Holding:
Affirmed. There was a significant amount of evidence supporting the trial court’s findings. The evidence that since the date of the original custody award the children began living with Schuller and enrolled in his school district standing alone, was sufficient to show a material changes of conditions affecting the best interests of the children.
Sigafoose v. Cobb, 345 Ga. App. 783 (2018)
Facts:
Cobb filed a complaint for legitimation and custody of the minor child he had with Sigafoose. Sigafoose counterclaimed for sole legal and physical custody. After a court-ordered psychological evaluation of Sigafoose, the trial court granted joint legal custody of the child to both parties with Cobb having primary physical custody and Sigafoose having visitation rights. Sigafoose appealed.
Holding:
The trial court did not abuse its discretion in awarding primary custody to Cobb. Neither party requested findings of fact, and thus, the basis for the custody award is not contained in the order. However, the Court of Appeals considered the significant amount of evidence contained in the record, and made a careful analysis of the factors to consider in a custody determination contained in O.C.G.A. 19-9-3(a)(3). Although there was some evidence supporting Sigafoose’s claims for custody, the record also contained a great deal of evidence supporting the award of custody to Cobb, and thus, the custody award was affirmed. The Court also affirmed the trial court’s award of attorneys fees to Cobb pursuant to O.C.G.A. §19-9-3(g) since the trial court did not abuse its discretion in making the award.
Pate v. Sadlock, et al., 345 Ga. App. 591 (2018)
Facts:
Pate and Sadlock divorced in 2013, and agreed to joint legal custody of their children with Pate (mother) having primary legal custody, and visitation for Sadlock (father) and his parents. Three years later, Sadlock was arrested on charges of aggravated sexual battery on one of the children, and his visitation was suspended. Pate then filed a petition seeking to suspend the grandparents’ visitation until after resolution of the criminal charges. Pate also filed a petition to modify Sadlock’s visitation due to the pending criminal charges. The trial court entered a temporary order awarding the grandparents supervised visitation with the children through a reunification therapist. A few months later, Sadlock filed a modification of custody action alleging that Pate was attempting to limit his and his family’s time with the children, that she actively coached the children to make untrue statements about him, and that she fabricated the sexual abuse allegations. The trial court ordered Pate, Sadlock and the grandparents to undergo a “custody evaluation and psychological evaluation,” and also appointed a reunification specialist to evaluate when and how the children and Sadlock should be reunified. In May 2017 the trial court held a joint hearing in the three cases which was limited to three hours. The trial court’s subsequent order addressed several issues, including quashing Pate’s subpoenas for the Guardian ad Litem’s and the reunification specialist’s files; denying Pate’s objection to the time limitation of the hearing and her motion to limit the evidence; authorizing the grandparent’s summer visitation, including make-up time for previously denied visitation; ordering reunification therapy for Sadlock and the children; coordinating therapy for the children; and scheduling a follow-up status hearing. Pate appealed.
Holding:
The Court of Appeals affirmed the trials court’s order. Although O.C.G.A. §19-7-3 limits grandparents’ rights to file an original action for visitation in certain circumstances, there are no limitations as to how often a grandparent may intervene in an existing action, or preventing the grandparent from filing a counterclaim in response to Pate’s motion to modify grandparent visitation. The standard applied in grandparent visitation cases is whether there is clear and convincing evidence that the child’s health or welfare will be harmed if visitation is not granted, and that the visitation is in the child’s best interests. O.C.G.A. §19-7-3(c)(1). The trial court granted extra visitation to the grandparents without properly applying this standard. But, since the visitation has already occurred, the issue is moot.
The Court also rejected Pate’s arguments that the trial court improperly limited the evidence, did not allow the parties to testify, and did not enforce her subpoena for the reunification therapist’s file. Pate did not ask to testify. She also failed to show that the trial court abused its discretion because she did not perfect her claims regarding limiting the evidence and not enforcing the subpoena by making a proffer of the significance of the evidence or a showing of possible harm caused by the ruling. Finally, the trial court’s provision for reunification therapy requiring Pate to comply with the therapist’s recommendations was not an improper self-executing change of visitation since the trial court retained the ultimate control over whether Sadlock’s visitation would be modified.
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