June 2020 was such a busy month for the Georgia Court of Appeals, that I have reported the custody and family law related opinions in two parts. The first five opinions released in June (listed below) can be found in Part 1 of the June 2020 Georgia Custody Case-Law Updates. Read on for the remaining four cases released in June 2020.
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.
Braddock v. Lindsey et al., Case No. A20A0024, Georgia Court of Appeals, June 23, 2020.
Facts:
The Lindseys are the maternal grandparents of T.M.B., the minor child at issue in this custody case. Braddock is her father. The Lindseys have been T.M.B.’s primary caretakers since she was three months old. At age two, T.M.B. began living with them. When Braddock and T.M.B.’s mother divorced, the Lindseys intervened, seeking custody of T.M.B. The trial court awarded custody to the Lindseys, and visitation for Braddock. Braddock appealed.
Holding:
Custody disputes between a biological parent and third parties, including grandparents, are governed by O.C.G.A. §19-7-1(b.1). The statute presumes that it is in the child’s best interests for custody to be awarded to a parent. That presumption, however, is rebuttable, and may be overcome by clear and convincing evidence that it is in the child’s best interest for custody to be awarded to the third party. The order need not specifically say “clear and convincing.” Rather, the judge is bound by that standard, and is presumed to have properly applied it. Furthermore, a finding of parental unfitness is not necessary. Instead, the evidence must establish that awarding custody to the parent would cause either physical, or significant long-term emotional harm to the child. Finally, if the third-party overcomes the presumption favoring parents, s/he must then establish that awarding custody to him/her best promotes the child’s health, welfare and happiness.
“Harm” can be physical, or significant long-term emotional harm. In its analysis, a trial court must first determine who have been the child’s caretakers. In this case, the Lindsey’s have cared for T.M.B. since infancy. The second prong examines the child’s psychological bonds. The trial court found that Braddock and T.M.B.’s mother “abrogated” their responsibilities, and that the Lindseys provided T.M.B. with a safe and stable environment, extracurricular activities, clothes and an education. Based on this, the court found that T.M.B. would suffer “great phychological harm” if she is removed from the Lindseys. The third prong of the “harm” analysis, interest in, and contact with the child, was also satisfied by the court’s finding that T.M.B.’s parents failed to care for her. And, finally, the fourth prong, was not a consideration, as there was no evidence that T.M.B. has any “unique medical or psychological needs.”
In addition to the foregoing, the evidence was that T.M.B. often returned from visitation with bug bites, and once with bruises and red welts. She also frequently returned exhibiting unusual behavioral issues. Given all of the foregoing, the Court of Appeals held that evidence supporting the award of permanent custody to the Lindseys was clear and convincing. Moreover, the Court held that the award was in T.M.B.’s best interests.
REMEMBER: Especially now, as we adjust to our “new normal” of practicing law, Guardians ad Litem play such an important role in difficult custody cases. Judges are overwhelmed with backlog and newly filed cases, so they are even less available now than they were before. Guardians ad Litem do more than just get to the truth of what is in the best interests of the children in custody disputes. Guardians ad Litem provide accountability. And, we keep our cases moving along in a positive direction, when everything else seems to move so slowly. And, most importantly, we work to get our cases settled. File that motion in your custody cases to ask that a Guardian ad Litem to be appointed! It will be one of the most important things you do for your client.
And, call me or e-mail me NOW about serving as the Guardian ad Litem in your custody cases.
Related Family Law Cases Released in June 2020:
O.C.G.A. §9-11-60 // Re-opening Divorce Case // Service
Paul v. Paul, Case No. A20A0194, Georgia Court of Appeals, June 26, 2020.
Almost three years after their divorce, the Wife filed a motion pursuant to O.C.G.A. §9-11-60(d)(2) to re-open the proceedings based on allegations of fraud. She did not personally serve the Husband with her motion. Rather, she served the motion on his attorney, who continued to represent the Husband in post-divorce litigation. Procedurally, a judgment not void on its face may be attacked only by a direct proceeding in the original court in which it was rendered. Such motion should be served as an original complaint if it cannot legally be served as any other motion.
In the instant case, it was not necessary for the Wife to file her motion as a separate action. Wife also properly served the Husband’s attorney with the motion since, technically, the underlying divorce action remained open, and the attorney was still Husband’s attorney-of record. O.C.G.A. §9-11-58(b) requires either the prevailing party, or the plaintiff, to file a civil case disposition form with a final judgment. If no form is filed, the final judgment is not considered entered, or enforceable. In this case, Husband, the petitioner in the underlying divorce action, never filed the form. Thus, the case remained open, and the Wife was permitted to serve Husband’s attorney with her motion pursuant to O.C.G.A. §9-11-5. Chief Judge McFadden concurred fully, in part, and specially in part. He opined that regardless of whether the case remained open, service upon the Father’s attorney was authorized under O.C.G.A. §9-11-60(f).
Metadata Evidence // Protective Orders
Swearngin v. Rowell, Case No. A20A0236, Georgia Court of Appeals, June 30, 2020.
Georgia law favors admitting evidence, even if its probative value is minimal. It follows that printouts of metadata attached to e-mails may be admissible if properly authenticated or identified. Under O.C.G.A. §24-9-901(a), the authentication requirement is satisfied if the matter is what the proponent claims it to be. This can be accomplished in many ways, many of which are enumerated in O.C.G.A. §24-9-901(b). Accordingly, with proper authentication or identification, a party may tender metadata printouts. Any objections that the metadata may have been manipulated goes to the weight of the evidence, not to its admissibility. And, an expert may be necessary to explain the significance of the metadata and how it can be used.
A trial court has the discretion to grant or deny a motion for a protective order, and will only be reversed for an abuse of that discretion. O.C.G.A. §16-5-94 provides that a stalking victim may obtain a protective order if, as in this case, the evidence shows that the defendant engaged in a pattern of harassing and intimidating conduct toward the victim.
TRUE STORY: Years ago, I served as the Guardian ad Litem in a legitimation case. As a part of my investigation, the Mother produced metadata from ugly and extremely offensive anonymous online postings, and from the Father’s e-mails, to show that the Father posted the comments. I’m not generally tech-savvy. But, it was easy to compare IP addresses to see that the Father was likely the anonymous poster. Needless to say, this evidence factored into my final recommendation in the case. Don’t forget about these, and other, details when you and your clients are preparing their cases for the Guardian ad Litem, or for trial. For support in building a strong custody case, check out my Litigation Support for Attorneys page. And, let’s talk!
Child Hearsay
Allison v. The State, Case No. A20A0552, Georgia Court of Appeals, June 29, 2020.
Child hearsay describing sexual contact or physical abuse may be admissible under certain circumstances. O.C.G.A. §24-8-820(a). The child must be available to testify at trial. Any inconsistencies in the child’s prior statements, and the child’s testimony at trial do not render the prior statements inadmissible. Rather, such inconsistencies present credibility questions to be resolved by the trier of fact.
Finally, Part 1 of the June 2020 Georgia Custody/Visitation Case Law Updates reviews the below cases from the first half of June 2020:
Spirnak v. Meadows- Ross v. Small
- Perez v. Cunningham
- Calloway-Spencer v. Spencer
- Nadal v. Nadal
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