Despite March 14th’s courthouse closures to non-essential business, behind the scenes, March 2020 was a productive month. The Court of Appeals released two custody related opinions, and five other family law related opinions. Also, please visit my Covid-19 Pandemic: Family Law Updates and Resources page for the latest in orders, notices and other resources relevant to our family law practices.
Brock v. Brown, Case No. A19A2083, Georgia Court of Appeals, March 4, 2020.
Gina Brown (Gina) is the sole legal parent of the minor child at issue. Her mother, Janet Brown (Janet), and Brock (Janet’s then-husband) were appointed as temporary co-guardians of the minor child. Six years later, Brock and Janet divorced. Brock, however, continued to visit with the child until a dispute arose two years later, and Janet began denying the visits. Eventually, Brock filed a petition seeking an award of temporary and permanent physical and legal custody of the child to both Janet and him. Janet filed a motion to dismiss. The trial court granted her motion. This appeal followed.
O.C.G.A. §19-7-1(b.1) governs custody actions between parents and third-parties. Third-parties who may seek custody, however, are limited to grandparents, great-grandparents, aunts, uncles, great-aunts, great-uncles, siblings and adoptive parents. Brock does not fall into any of these categories. Therefore, the trial court did not err in dismissing his petition for lack of standing.
Razi v. Burns, Case No. A19A1936, Georgia Court of Appeals, March 16 , 2020.
Razi legitimated his two children when he and Burns, the mother, lived in California. They shared joint legal and physical custody, and the order stipulated that California was the children’s home state. Thereafter, both parties moved to Georgia. Ten months later, Razi absconded with the children to California, and obtained an emergency ex parte order of sole legal custody. However, the California court later questioned its jurisdiction, and returned the children to Burns’ sole legal and physical custody.
Razi then filed the instant modification action in Georgia. In his complaint, he affirmed that he and Burns were Georgia residents, and that Georgia was the children’s home state. The trial court found that jurisdiction and venue were proper in DeKalb County, and granted temporary physical and legal custody to Burns, with visitation for Razi. The trial court also granted Razi’s request to appoint a guardian ad litem (GAL), and several of his requests for continuances.
Eventually, DFCS became involved in response to abuse allegations. The children were placed in Razi’s custody, and had no contact with Burns. Pending an investigation by the GAL, the trial court temporarily honored the DFCS safety plan. Two months later, the GAL moved for the children to begin therapy, and to immediately begin visiting with Burns. Razi appeared for the hearing, but he filed a notice of voluntary dismissal without prejudice. The trial court vacated Razi’s dismissal, and granted the GAL’s requests. Razi appealed.
Affirmed. Under the Uniform Child Custody Jurisdiction Enforcement Act (UCCJEA), the Georgia Court had jurisdiction to modify the California custody order. The trial court explicitly found that both parents resided in Georgia. And, the children lived with both parents. Furthermore, both parties averred in their pleadings that the children lived in Georgia. Notably, the UCCJEA does not require the trial court to make express factual findings as to the children’s “home state.” Accordingly, the trial court did not err by not specifically making this finding.
Likewise, the trial court did not err in vacating Razi’s voluntary dismissal. O.C.G.A. §9-11-41(a)(1)(A) provides that a plaintiff may dismiss an action without the court’s permission before any witnesses are sworn. Razi filed his voluntary dismissal after several hearings, sworn witnesses and orders. Accordingly, he could not dismiss his case without court permission. Additionally, the fact that the California legitimation order was never domesticated in Georgia does not affect the outcome of this case. Rather, the record is replete with both parties’ sworn statements and stipulations regarding Razi’s paternity of the children. Finally, Razi’s argument that he was harmed by the sequence in which the trial court entered its orders lacks merit.
Presiding Judge Miller authored a dissent. In essence, the dissent argues that the trial court did not make the necessary findings to support its exercise of jurisdiction under O.C.G.A. §19-9-63. Section (1) of the code section requires that the California court either relinquish jurisdiction, or determine that Georgia is a more convenient forum. Section (2) requires the trial court to affirmatively determine that that the children did not live in California at the time Razi filed his petition in Georgia. The dissent argues that neither of these two prongs were met.
PRACTICE CONSIDERATION: Both the majority and the dissent recognized that Razi’s litigation tactics were questionable. In fact, the Court noted that his attorney withdrew from the case because of disagreements on litigation strategy. These issues, and unreasonable client expectations, are common in custody cases. When they arise, before withdrawing from the case, schedule an Independent Custody Assessment with me. The second opinion and fresh perspective may be the reality check and tipping point your client needs to bring reasonableness back to your case, and to your settlement discussions.
Related Family Law Cases Released in March 2020:
Divorce // Subject Matter Jurisdiction
Crittenden v. Crittenden, Case No. A19A1866, Georgia Court of Appeals, March 6, 2020.
Under O.C.G.A. §19-5-2, a party must be a bona fide resident of Georgia for six months before filing a petition for divorce. The burden of proof is on the petitioner to show that he or she actually maintained a single fixed place of abode in Georgia with the intent to remain indefinitely. In the instant case, Husband/petitioner lived in Georgia until he joined the military. While stationed in Japan, he married Wife, and had children. Husband produced no evidence of an actual residence in Georgia where he intends to return to live. Accordingly, the trial court did not err in dismissing his complaint for divorce.
Termination of Parental Rights
In the Interest of C.S., a child, Case No. A19A2237, Georgia Court of Appeals, March 6, 2020.
The juvenile court did not err in terminating the Father’s parental rights under O.C.G.A. §15-11-310(a)(4). The evidence was clear and convincing that the Father abandoned C.S., as defined by O.C.G.A. §15-11-2(1). He had no contact with C.S. for almost three years, and he made no effort to address his drug and anger issues so that he could visit with the child. Moreover, the Father was repeatedly incarcerated for various offenses, and, there was no credible evidence that he attempted to contact C.S. despite his incarceration. Plus, his history indicates that his criminal activity will likely continue. Furthermore, the juvenile court’s detailed findings of fact supported its conclusion that terminating the Father’s parental rights is in C.S.’s best interests. Finally, the grounds for terminating parental rights under O.C.G.A. §15-11-310(a) are independent of one another. Thus, if sufficient evidence supports any one ground, it is not necessary to consider the other grounds.
Finally, in a termination of parental rights action, the parties are entitled to effective counsel. To prevail on an ineffective assistance of counsel claim, one must show that the attorney’s performance was deficient, and that it was prejudicial to the defense of the case.
Criminal Contempt // Sequestration
In re Adams et al., Case No. A19A1723, Georgia Court of Appeals, March 13, 2020.
A finding of criminal contempt requires proof beyond a reasonable doubt that the alleged contemnor willfully violated a court order. Indirect criminal contempt occurs outside of the court’s presence. In those cases, due process requires normal adversarial procedures, including the right to assistance of counsel and to call witnesses. Direct criminal contempt acts are those committed in the trial court’s presence in open court, and threatening its ability to conduct proceedings. Summary adjudication is authorized in direct criminal contempt cases after the contemnor is given an opportunity to speak in his or her own behalf. See also, Sponsler v. Sponsler, et al., 353 Ga. App. 627 (2020)
The rule of sequestration, O.C.G.A. §24-6-615, provides that at the request of either party, or on the court’s own motion, witnesses shall be excluded from the courtroom so that they cannot hear the testimony of other witnesses. In the instant case, the evidence does not support the trial court’s conclusion that the attorneys violated the trial court’s sequestration order.
Application for Discretionary Appeal
Patricia Duffy v. Stephen Sanders, Case No. A20A0383, Georgia Court of Appeals, March 20, 2020.
The ex-wife’s claim for tortious interference with business relations was ancillary to the divorce proceedings and/or derived from the marital relationship. Thus, she can only seek appellate review of the trial court’s dismissal of her claim by filing an application for discretionary review under O.C.G.A. §5-6-35(a)(2).
Dependency Proceeding // Right to Counsel
In the Interest of J.B., a child, Case No. A20A0078, Georgia Court of Appeals, March 24, 2020.
Pursuant to O.C.G.A. §15-11-103(a), a child and the parties have the right to an attorney at all stages of a dependency proceeding. The parties may knowingly and voluntarily waive that right, or he/she may retain an attorney of his/her choice. An indigent party is entited to a court-appointed attorney, unless he/she waives that right.