In April 2021, the Georgia Court of Appeals released three custody-related opinions, and three other cases relevant to family law.
The Statewide Judicial Emergency remains in effect until May 8, 2021. See the thirteenth 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.
Custody-Related Cases Released in April 2021:
Greenlee v. Tideback, Case No. A21A0622, Georgia Court of Appeals, April 1, 2021.
Greenlee and Tideback entered into a same-sex marriage in 2013. Two children were born during the marriage. In 2017, they divorced, and entered into a settlement agreement and parenting plan giving them joint custody of the minor children. Greenlee filed a motion for judgment on the pleadings, requesting the court to incorporate the settlement agreement into the final decree of divorce. The trial court granted her motion. Two years later, Greenlee filed a motion to set aside the final judgment and award of custodial rights to Tideback, claiming that the latter is neither the children’s biological or adoptive parent. The trial court denied Greenlee’s motion to set aside on the basis that judicial estoppel precluded her from now claiming that no children were born of the marriage. This appeal followed.
Affirmed. Under the doctrine of judicial estoppel, a party may not assert a position after having successfully asserted a contrary position in a prior proceeding. In applying the doctrine, the trial court must consider whether the current position is clearly inconsistent with the earlier position that the party successfully persuaded the court to accept. The court must also consider any unfair detriment to the opposing party, or any unfair advantage to the party asserting the inconsistent position if he/she is not estopped. In the instant case, Greenlee successfully moved the court to enter the divorce decree incorporating the settlement agreement which provides that the children were born of the marriage. Her current position is clearly inconsistent with that prior position, and is unfairly detrimental to Tideback and the children. Accordingly, the trial court did not err by denying Greenlee’s motion to set aside on the basis of judicial estoppel.
Brown v. Brown, Case No. A21A0122, Georgia Court of Appeals, April 13, 2021.
The parties’ parenting plan provided “Each parent shall be entitled to two consecutive weeks of uninterrupted parenting time with the minor children during the children’s summer vacation from school.” Mother filed a motion for declaratory judgment requesting that the trial court interpret the provision as requiring the parties to exercise their parenting time in weekly increments, rather than in random day increments. Father responded that the provision allows for two consecutive weeks, but does not define how those weeks should be allocated or exercised. The trial court denied Mother’s declaratory judgment action, finding that the provision allows for “up to” 14 additional days of summer parenting time in either daily or weekly increments. The trial court also awarded Father attorney fees pursuant to O.C.G.A. §§9-15-14(b) and 19-9-3(g). Mother appealed.
Reversed in part, vacated in part, and remanded. The summer parenting time provision unambiguously provides for two consecutive weeks of uninterrupted parenting time during the summer for both parents. Father is not obligated to exercise his two weeks of summer parenting time. The provision, however, does not allow him to exercise his parenting time in daily increments for “up to” 14 days, as the trial court erroneously ruled. Mother appropriately sought declaratory judgment to clarify her rights since the facts demonstrated that an actual controversy existed as to the interpretation of the summer parenting time provision.
Given the trial court’s erroneous ruling on the motion for declaratory judgment, it follows that the trial court abused its discretion in awarding attorney fees to Father. The trial court based its O.C.G.A. §9-15-14(b) award of fees on Mother’s pursuit of the declaratory judgment action only. Yet, the Court of Appeals held that Mother’s motion was legitimate, and not substantially frivolous, groundless or vexatious. Thus, that portion of the attorney fees award was reversed. The fees awarded pursuant to O.C.G.A. §19-9-3(g), however, were based on Mother’s pursuit of her custody claims as well as the declaratory judgment action. Accordingly, the Court of Appeals vacated that award and remanded the case to the trial court to determine what fees, if any, should be awarded based solely on Mother’s pursuit of her custody claims.
Finally, the order was prepared and presented by Father’s attorney. Mother’s attorney reviewed the order, suggested some changes and approved the proposed order. Counsel’s “approval,” however, does not go to the substance of the proposed order. Rather it is an approval as to content or form, and an acknowledgement that proposed order accurately reflects the court’s oral ruling.
PRACTICE NOTE: Special care should be taken in drafting Parenting Plans. The language used may have long-term unintended ramifications. Check out my Independent Custody Assessment and Litigation Support for Attorneys pages to see what I can do to provide support and assistance in drafting Parenting Plans or other documents, developing strategies and navigating through some of your most difficult cases. The fresh perspectives and litigation support may be exactly what you need!
Wallace v. Chandler, et al. Case No. A21A0648, Georgia Court of Appeals, April 22, 2021.
Wallace’s (the mother) minor child was placed in the Chandlers’ custody pursuant to a Juvenile Court dependency action. Subsequently, the Chandlers filed a petition for custody in the Superior Court. After a hearing at which the Wallace was not present, the trial court awarded custody to the Chandlers as the minor child’s “fictive kin.” Wallace filed a motion to set aside, which the trial court denied. This appeal followed.
Reversed. Generally, third parties can only seek custody of a child if the parents have lost custody by one of the means set out in O.C.G.A. §19-7-1 or O.C.G.A. §19-7-4, or if the parents have been deemed unfit. However, O.C.G.A. §19-7-1(b.1) does not allow non-relatives to petition for custody against a parent. Rather, the code section specifically limits third parties to grandparents, great-grandparents, aunts, uncles, great-aunts, great-uncles, siblings and adoptive parents. Accordingly, the Chandlers did not have standing under O.C.G.A. §19-7-1(b.1) to file the instant custody action, and the trial court should have set aside the order. As non-relative third-parties, the Chandlers could have petitioned for custody in a dependency action under O.C.G.A. §15-11-150 in the Juvenile Court, which has exclusive original jurisdiction in dependency actions. Alternatively, the recently enacted Equitable Caregiver statute, O.C.G.A. §19-7-3.1, provides another avenue for the Chandlers to petition for custody.
Related Family Law Cases Released in April 2021:
Rules for the Use of Interpreters for Non-English Speaking and Hearing Impaired Persons
Elsayed, et al. v. Bakayoko, Case No. A21A0124, Georgia Court of Appeals, April 1, 2021.
Under the Georgia Supreme Court Rules for the Use of Interpreters for Non-English Speaking and Hearing Impaired Persons, a judge in a civil case must provide an interpreter for a party who does not understand English well enough to fully participate in the critical stages of the proceedings. Uniform State Court Rule 7.3 sets out the procedure for obtaining a court-appointed interpreter. A notice must be filed within a reasonable period before the proceeding, designating the participants and language for which the interpreter is needed, the estimated time the interpreter will be required, and whether the interpreter will be needed for all proceedings in the case. Even when an interpreter is not requested, if the trial court observes the possible need, it should investigate whether one should be appointed. Appointing an interpreter is within the sound discretion of the trial court.
Rhoden v. Rhoden, Case No. A21A0210, Georgia Court of Appeals, April 18, 2021.
A trial court may grant a protective order under O.C.G.A. §19-13-3(c) or §16-5-94 if the petitioner proves the allegations by a preponderance of the evidence. If the evidence does not support the allegations, the trial court has no authority to provide any relief, and must dismiss the petition.
In the Interest of G.G., Case No. A21A0313, Georgia Court of Appeals, April 27, 2021.
This is the second appearance of this case in the Court of Appeals. See In the Interest of G.G. The juvenile court’s finding that the mother is unfit, and the minor child is dependent was authorized by the evidence. The court properly considered evidence of past misconduct, as well as the mother’s continuing patterns of neglect for G.G.’s basic needs.