In January 2021 and December 2020, the Georgia Court of Appeals released two custody opinions, and three other cases relevant to family law.
The Statewide Judicial Emergency remains in effect until February 7, 2021. See the tenth 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.
Wall v. James, Case No. A20A2058, Georgia Court of Appeals, January 15, 2021.
Wall is the primary custodian of 15-year-old E.J. James has specific parenting time and regular phone contact with E.J. Wall petitioned to modify and restrict James’ visitation as per E.J.’s wishes expressed in her “Affidavit of Election.” James counterclaimed, contending that Wall prevented his regular weekend visitation before the Thanksgiving holiday, as well as his Christmas holiday visitation. He alleged further that Wall interfered with his phone calls with E.J. The trial court denied Wall’s motion to modify visitation, and instead, held her in contempt for violating the visitation provisions of the Parenting Plan.
Reversed. Wall did not willfully disobey the court order. The Parenting Plan provides that Thanksgiving visitation is “from 6:00 p.m. on the day school recesses for Thanksgiving…” Holidays also take precedence over weekend visitation. E.J.’s school recessed the Friday before Thanksgiving. Thus, that weekend was holiday parenting time, not James’ regular weekend visitation. Likewise, the Parenting Plan provides that Christmas visitation starts “from the time school lets out,” but no time is specified. The parties did not coordinate a time, and arrived at the custody exchange location at different times. Finally, Wall did not restrict E.J.’s telephone access, or otherwise prohibit her from communicating with James. Rather, E.J. refused to speak with James, despite Wall’s encouragement to do so. It follows that since the evidence does not support a finding of willful contempt, the attorney fees award, and the sanctions requiring Wall to reimburse James’ travel expenses must be reversed.
PRACTICE CONSIDERATION: Sometimes the nuances in our family law practices get the best of us. Check out my Litigation Support for Attorneys page to see what I can do to provide support and assistance in developing strategies and navigating through some of your most difficult cases. The fresh perspectives and litigation support may be exactly what you need!
Rodgers v. Rodgers, Case No. A20A1779, Georgia Court of Appeals, January 29, 2021.
The parties agreed to joint legal custody, with Mother having primary physical custody of their four children. They signed an agreement and Parenting Plan on December 15, 2018. Four days later, the trial court signed the final judgment and decree of divorce incorporating the agreement, and the judgment was filed of record on December 28, 2018. However, on December 27, 2018, Father filed a “Motion to Rescind Settlement Agreement and for Primary Physical Custodianship.” The trial court subsequently vacated the final judgment and decree and entered a temporary order transferring custody to Father. Several months later, the trial court granted a “total divorce” to the parties, but kept the financial, child custody and visitation issues open. Ultimately, the trial court entered a Final Order awarding sole legal and physical custody to Father, and ordering that Mother’s visitation be supervised, based on a Department of Family and Children Services safety plan.
Judgment vacated and remanded with direction. The trial court had no authority to rescind the settlement agreement after the entry of the final judgment and decree. Instead, since the motion was filed within the same term of court in which the final judgment and decree was rendered, the trial court treated it as a motion for reconsideration, and exercised its inherent authority to vacate the judgment. Furthermore, the transcript from the evidentiary hearing contains no record of a DFACS safety plan. Accordingly, the trial court erred, since it is prohibited from considering matters outside of the record. Finally, the trial court erred by granting the divorce, but reserving the custody and financial issues. Uniform Superior Court Rule 24.7.
PRACTICE CONSIDERATION: The trial court in this case probably would have benefited greatly from appointing a Guardian ad Litem. A Guardian ad Litem could have filed the appropriate motions to obtain the DFACS records. Guardians ad Litem 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 January 2021 and December 2020:
Stone v. Stone, Case No. A20A1814, Georgia Court of Appeals, January 29, 2021.
A trial court has broad discretion to interpret, clarify and enforce the terms of a divorce decree. The court, however, does not have authority to modify the terms of the decree in a contempt action. In the instant case, in violation of the parties’ settlement agreement, the former wife failed to make payments toward the upkeep of the marital home. The agreement, however, provided no remedy for either party’s non-compliance with the payment provisions on the marital home. Accordingly, the trial court had no authority to order the house to be sold to pay the outstanding bills.
In the Interest of K.G.V., a child, Case No. A21A0033, Georgia Court of Appeals, December 31, 2020.
The Juvenile Court found that K.G.V. was dependent, and placed her under the permanent guardianship of her maternal grandmother. Subsequently, the grandmother petitioned to adopt K.G.V. under O.C.G.A. §§19-8-7(a) and 19-8-10(10). A relative who is also appointed as a permanent guardian to the child may pursue a petition to adopt the child under O.C.G.A. §§19-8-7(a) and 19-8-10(a) as long as he or she otherwise meets the eligibility requirements for adoption contained in O.C.G.A. §19-8-3(a).
Termination of Parental Rights
In the Interest of H.A.S., a child, Case No. A21A0140, Georgia Court of Appeals, December 30, 2020.
Termination of parental rights is a two step process. The Juvenile Court first determines whether one of five statutory grounds for termination under O.C.G.A. §15-11-310(a) are present. If one of those grounds for termination is established, the Juvenile Court must then consider the factors under O.C.G.A. §15-11-310(b) to determine whether terminating the parental rights is in the child’s best interests. One of the grounds for termination, O.C.G.A. §15-11-310(a)(2), considers whether “[t]he parent has subjected his or her child to aggravating circumstances.” Abandonment of the child is an “aggravating circumstance” if the court finds “any conduct . . . showing an intent to forgo parental duties or relinquish parental claims.” O.C.G.A. §15-11-2(1).
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