Another busy month! In October 2020, the Georgia Court of Appeals released two custody and visitation opinions, and four other opinions related to family law.
In addition, the Statewide Judicial Emergency remains in effect until November 9, 2020. Will it be extended again? My ‘crystal ball’ says yes. County courthouses are hard at work to meet safety guidelines so that grand juries and jury trials can resume. However, hearings and trials are continuing virtually, and are livestreamed on the internet. Who has problems with this? How is this affecting our practices? Let us know in the comments section below. See the seventh extension to Georgia’s Statewide Judicial Emergency, and other orders, notices and resources relevant to our family law practices on my Covid-19 Pandemic: Family Law Updates and Resources page.
Davis et al. v. Cicala, Case No. A20A1116, Georgia Court of Appeals, October 5, 2020.
In 2014, the parents of the two children at issue in this case divorced. For two years thereafter, Father lived with, and exercised his parenting time with his mother, Cicala (paternal grandmother). Cicala also cared for the children both before and after the divorce, provided financial support, took them on vacations, and otherwise maintained a strong relationship with the children. In 2017, the parents stopped allowing the children to visit with Cicala. In 2018, Mother filed a petition for modification of custody and parenting time. Cicala intervened, requesting visitation. Both parents objected. The trial court awarded visitation to Cicala, finding clear and convincing evidence that the children would be harmed if they are not able to visit with Cicala, and that the visitation is in their best interests. Both Mother and Father appealed.
Under O.C.G.A. §19-7-3(c)(1), a trial court may grant visitation to a family member if evidence is clear and convincing that the child’s health and welfare would be harmed if no visitation is granted, and if it is in the child’s best interests. The code section enumerates conditions under which the trial court may find a likelihood of harm, including the child’s pre-existing relationship and contact with the family member. Denying contact between the child and the family member does not necessarily suffice. In the instant case, the trial court’s visitation award was authorized by the statute. Specifically, Cicala cared for and provided support for the children. Moreover, both parents testified to the emotional attachment between the children and Cicala. Judge Coomer concurred dubitante. The marjority, he believes, properly applied the statute. He, however, questions the statute’s constitutionality. Finally, judgments in custody cases are directly appealable under O.C.G.A. §5-6-34(a)(11). Since visitation is a part of custody, the parents properly sought review by direct appeal.
McManus v. Johnson, Case No. A20A1185, Georgia Court of Appeals, October 5, 2020.
McManus (the mother) and Johnson (the father) had joint legal custody of their minor child. McManus had primary physical custody. Over time, by agreement of the parties, the child began spending significantly more time at Johnson’s home. Eventually, Johnson filed a petition for primary physical custody. Following a temporary hearing, the trial court found that the unstructured custody arrangement was an “unstable situation” which was contrary to the child’s best interests. The court then adopted the Guardian ad Litem’s interim recommendation, and entered a temporary order granting the parties 50/50 custody of the child. McManus appealed.
Affirmed. Pursuant to O.C.G.A. §19-9-3(e), a trial court may temporarily change custody in a modification of custody action. A temporary custody award is not an adjudication of the parties’ rights. Rather, the purpose is to ensure that the child is adequately cared for pending the final order. The trial court has broad discretion in awarding temporary custody. A finding of changed circumstances is not necessary. Thus, since the evidence in the instant case supported the temporary custody award, the trial court did not abuse its discretion. Parenthetically, the Court of Appeals noted that the parties’ agreed-upon change in Johnson’s visitation schedule is not a change in circumstance that, standing alone, would trigger a permanent modification of custody.
PRACTICE CONSIDERATION: As in this custody case, a Guardian ad Litem is one of the most important pieces of the puzzle. We not only work to get to the truth of what is in the children’s best interests. We also provide accountability, and keep cases moving along in a positive direction. And, most importantly, we work to settle our cases. File a motion for the appointment of a Guardian ad Litem in your custody cases! 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.
Related Family Law Cases Released in October 2020:
In the Interest of T.Y., et al, children, Case No. A20A1417, Georgia Court of Appeals, October 19, 2020.
This is the second appearance of this case in the Court of Appeals. In In the Interest of T.Y., 350 Ga. App. 553 (2019), the Court vacated the juvenile court’s denial of the mother’s motion for reunification. On remand, the juvenile court again denied the mother’s request for reunification, concluding that she will not protect the children from her husband when, in a few years, he is released from incarceration. The Court of Appeals reversed the juvenile court because it relied upon evidence of past and potential future dependency rather than evidence of present dependency. Additionally, parental unfitness is an essential element to support an adjudication of present dependency.
O.C.G.A. §9-15-14 Attorney Fees
Matthews v. Mills, Case No. A20A1055, Georgia Court of Appeals, October 20, 2020.
This dispute arises from a contentious relationship between two ex-wives of the same man. Matthews sued Mills for libel and slander, alleging that Mills filed a false police report. The trial court granted summary judgment in favor of Mills on both claims. The court also awarded to Mills the full amount of attorney fees she requested, pursuant to O.C.G.A. §9-15-14(a) and (b). The Court of Appeals, however, vacated and remanded the fee award because the trial court failed to limit the sanctions to fees incurred because of relevant sanctionable conduct.
Uniform Interstate Family Support Act
Serluco v. Taggart, Case No. A20A1368, Georgia Court of Appeals, October 21, 2020.
The Uniform Interstate Family Support Act (UIFSA) codified at O.C.G.A. §19-11-100 et seq., governs domestication/registration of foreign child support and/or alimony judgments for the purposes of enforcement and modification. A trial court must consider the legal standards set forth in the UIFSA when enforcing or modifying a foreign judgment.
Legitimation Past Support // Child Support Deviations // Attorney Fees
Day v. Mason, Case No. A20A1520, Georgia Court of Appeals, October 29, 2020, revised November 18, 2020.
O.C.G.A. §19-7-24 provides that both parents of a child born out of wedlock have a joint and several duty to provide for the child. Accordingly, a trial court may require a Father to pay past child support for the period before paternity was established. The amount of back child support is based on the actual expenses the Mother incurred on behalf of the child.
Generally, the presumptive amount of child support includes extracurricular activities. However, in accordance with O.C.G.A. §19-6-15(i)(2)(J)(ii), if special expenses (including extracurricular activities) exceed 7% of the basic child support obligation, the overage shall be a deviation to be included in Schedule E of the Child Support Worksheet. The trial court must also include written findings to justify the deviation. Furthermore, a trial court may not accept a negotiated agreement to deviate from the guidelines if the agreement does not comply with the code section, and does not have the required findings of fact. But, if there are no deviations from the presumptive amount of child support, then findings of fact are not required. See also, Park-Poaps v. Poaps. Finally, if the trial court includes factual findings as to the parties’ incomes and expenses in its order, a child support worksheet is not required.
In legitimation actions, a trial court may award reasonable attorney’s fees and expenses of litigation under O.C.G.A. §19-9-3(g). The court has broad discretion in awarding fees and expenses under this code section. The parties’ financial circumstances is not a relevant consideration. Rather, the court must look at proof of the costs and the reasonableness of those costs. But, the statute does not authorize appellate attorney fees. Finally, O.C.G.A. §9-11-37 authorizes attorney’s fees as a saction for failing to provide discovery in violation of a discovery order.
PRACTICE CONSIDERATION: Sometimes the nuances in family law get the best of us. Working through all of the detail can be stressful. Check out my Litigation Support for Attorneys page to see what I can do to provide support and assistance for you in navigating through the difficulties. The fresh perspectives and litigation support may be exactly what you need!
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