July 2020 Georgia Custody/Visitation Case Law Update

Unlike June, in July 2020, the Court of Appeals did not release a lot of new opinions. In fact, they released only two custody related opinions and one other opinion relevant to family law (below). Yet, July 2020 was still a busy month in the Court of Appeals. Deadlines were reinstated in June. So, the Court spent much of July processing briefs and other filings that have been delayed for months, and issuing an unusually large number of dismissals, primarily for failure to meet the reinstated deadlines.

In July 2020, the Court also announced an historic change to Georgia Court of Appeals Rule 33.2, effective August 1, 2020. Previously, an opinion was considered “physical precedent only” if one of the panel judges dissented, or concurred specially or in judgment only. In those events, the opinion served as persuasive, but not binding authority. Now, under the new Rule 33.2, as long as a majority of the panel judges fully concur in the rationale and judgment of the decision, a dissent or special concurrence does not diminish the opinion’s precedential value. Rather, the opinion will still be binding authority.

Interestingly, all three cases reported below have dissenting opinions, and are therefore marked “physical precedent only.” The new Rule 33.2 does not apply retroactively. So, the below cases are persuasive authority only.

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.

Perkins v. Hayes, Case No. A20A0204, Georgia Court of Appeals, July 2, 2020.

Facts:

Perkins (the Mother) filed a petition for paternity, child support, and custody. The custody issues were transferred to the Juvenile Court after Perkins alleged that Hayes (the Father) sexually abused the child. The Juvenile Court appointed a Guardian ad Litem (GAL), ordered a home study investigation, and a reunification therapist was brought in to determine if reunification between the Hayes and the child was appropriate. The reunification therapist issued a confidential report to the court and the attorneys for both parties. Prior to the final trial, Perkins filed a motion to release the GAL’s file. The GAL opposed the motion, and the trial court denied Perkins’ request. In its final order, the trial court granted unsupervised visitation to Hayes, the first few months of which were subject to the GAL’s “guidance.” Perkins appealed.

Holding:

Affirmed.  The majority did not address the question of whether making visitation subject to the GAL’s “guidance” was an inappropriate delegation of the trial court’s authority to the GAL. Perkins appealed the order. She, however, did not ask for an injunction, pending appeal, to prevent the order from taking effect. Thus, the issue of the GAL’s “guidance” in the first few months of the order was mooted by the passage of time. Presiding Judge Miller dissented, as she disagreed that the issue was moot. Instead, she argued that the case should have been remanded so that the trial court could correct its improper delegation of authority to the GAL.

The Court of Appeals also did not fully address Perkins’ challenge to the trial court’s denial of her motion to release the GAL’s file. Rather, the Court held that Perkins presented nothing for review since she never pursued a ruling on her motion before trial, and she did not object to proceeding to trial without a ruling. Additionally, the Court noted that the statutory authority cited by Perkins in support of her motion (O.C.G.A. §§15- 11-104(k), 15-11-105(f) and 15-11-170(e)) related to Juvenile Court dependency proceedings, and not to custody proceedings.

Lastly, Perkins challenged the trial court’s reliance on documents that were not entered into evidence. The social worker’s confidential report, however, was included in the record on appeal, and the trial court and both attorneys had copies. In any case, the court’s consideration of the report was harmless, since it was cumulative of other properly admitted evidence. Likewise, the trial court did not err by quoting in its findings, e-mails that were not admitted into evidence. Those e-mails were also cumulative, since the parties to the e-mails testified about them.

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DISCUSSION:  Generally, Uniform Superior Court Rule 24.9(6)(c) is the authority to cite for the release of the GAL’s file. This case, however, was transferred to the Juvenile Court for adjudication. Would it have made a difference if Perkins cited the Superior Court Rule instead of the Juvenile Court dependency statutes?

The Court of Appeals started its discussion on this issue by noting that Perkins did not file her motion to obtain the GAL file until long after the discovery period ended. Was the Court suggesting that one needs to comply with the rules of discovery to obtain the GAL file?

Do you ask for the opportunity to review the GAL file in your custody cases? I am surprised at how few attorneys do this. A review of the GAL file can be so revealing. Yet, it is a tool that isn’t used as often as it should be. I wonder why.

Let us know your thoughts on this discussion. Please leave your comments below.

AND, REMEMBER: 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 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.

Call me or e-mail me NOW about serving as the Guardian ad Litem in your custody cases.

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Skipper et al. v. Paul, Case No. A20A0521, Georgia Court of Appeals, July 2, 2020.

Facts:

Paul gave birth to a child who was adopted by Skipper and Cowart. Five months later, Paul moved to set aside the final adoption decree. The trial court granted her motion to set aside based on numerous nonamendable defects on the record. Among other issues, the trial court found that the biological father’s surrender of parental rights was unsupported by an affidavit from Paul; that the surrender of rights forms that Paul executed did not conform with statutory requirements, and were not properly notarized or witnessed; and that other statutory forms and documents were missing from the record. Skipper and Cowart appealed.

Holding:

Reversed. A trial court may set aside a judgment under O.C.G.A. §9-11-60(d)(3) if a nonamendable defect on the face of the record or pleadings affirmatively shows that no legal claim existed. In the instant case, the irregularities as to the forms were amendable. Therefore, those issues were not a basis to set aside the adoption.

Presiding Judge Doyle dissented. She argued that there were more issues than those cited by the majority to support setting aside the adoption. Firstly, pursuant to O.C.G.A. §19-8-26, Paul was required to sign the sworn statement identifying the alleged biological father before the latter executed his surrender of parental rights. Furthermore, the trial court could not properly determine that there were no improper financial inducements in violation of O.C.G.A. §19-8-24, since the attorney’s affidavit required under O.C.G.A. §19-8-13(d) was never filed, and the Petitioner’s accounting required pursuant to O.C.G.A. §19-8-13(c) was incomplete. Finally, the trial court did not appoint an investigator, as required by O.C.G.A. §19-8-16(a). Judge Doyle argued that these statutory provisions are mandatory and should be strictly construed.

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Related Family Law Cases Released in July 2020:

O.C.G.A. §9-15-14 // Motion to Enforce Settlement Agreement
Miller et al. v. Miller, Case No. A20A0377, Georgia Court of Appeals, July 2, 2020.

In this business dispute among family members, the trial court reserved the issue of attorney fees. Generally, a trial court’s judgment is not final and appealable until all issues, including requests for  attorney fees, have been ruled upon. However, a motion for fees pursuant to O.C.G.A. §9-15-14 is considered an ancillary and post-judgment action that does not render the judgment non-final for purposes of appeal.  Furthermore, when the existence of a settlement agreement is disputed, a motion to enforce the settlement agreement must establish its existence in writing. Ideally, this is a formal written agreement signed by the parties. However, documents and letters prepared by the attorneys memorializing the terms of the agreement may suffice. Chief Judge McFadden concurred in part, and dissented in part.