The Georgia appellate courts did not release any family law related opinions in July 2021. In August 2021, the Georgia Court of Appeals released five custody and family law related opinions.
The Statewide Judicial Emergency ended on June 30, 2021. See local orders 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 August 2021:
Alden v. Yarborough, Case No. A21A0678, Georgia Court of Appeals, August 5, 2021.
In May 2007, the parties entered into a consent order granting custody and child support to Alden, and visitation to Yarborough. Subsequently, the trial court addressed petitions for custody and visitation filed by the grandparents, and contempt actions for Yarborough’s failure to pay child support. In 2017, Alden moved to North Carolina with the children. Thereafter, the Department of Social Services removed the children from her custody. In 2019, the Georgia judge denied Alden’s motion for a ruling that it had continuing and exclusive jurisdiction over the custody issues pursuant to the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA). A few months later, the Georgia and North Carolina judges communicated about the jurisdictional issues, and the Georgia judge entered an order releasing jurisdiction to North Carolina. The parties were neither informed of the judges’ communications nor provided access to the record of those communications. This appeal followed.
Vacated and remanded. Under the UCCJEA, the Georgia court has exclusive and continuing jurisdiction over the custody matter, O.C.G.A. §19-9-62(a). The Georgia Court, however, may decline to exercise jurisdiction if it finds that Georgia is an inconvenient forum for future custody determinations. O.C.G.A. §19-9-67(a). The parties must be given the opportunity to present evidence and argument before the court rules on jurisdiction. Moreover, a trial court must make a record of communications with a judge from another state regarding jurisdiction, and give the parties access to the record. Accordingly, in the instant case, the trial court committed reversible error by failing to inform the parties of its communications with the North Carolina judge, and by not giving the parties the opportunity to present evidence and argument before issuing its order.
Leach v. Warner, Case No. A21A0774, Georgia Court of Appeals, August 11, 2021.
Leach (Mother) and Berry (Father) are the parents of a child born in 2010. Warner is the paternal grandmother. In the early years, Warner regularly cared for the child in Leach’s home in California, and Leach and the child visited with Warner in her home. From 2015 to 2017, after Leach moved the child to Georgia, Warner saw the child only during Berry’s visitation. In 2017, Berry cut his relationship with Warner off because of Warner’s husband’s alleged inappropriate behaviors with the child. Thereafter, in 2017 and 2018, Leach allowed Warner to visit and have Facetime contact with the child. However, eventually, Leach also stopped all contact with Warner, who then petitioned for grandparent visitation. The trial court granted Warner’s requests, finding that she had established a pattern of visitation, that denying visits would be harmful to the child, and that visitation is in the child’s best interest. Leach appealed.
Affirmed. O.C.G.A. §19-7-3 provides a means for grandparents (and other family members) to obtain visitation rights when a child’s parents object. The statute balances the child’s interests, the parents’ rights, and the family member’s wishes. The trial court may grant visitation rights if it finds clear and convincing evidence that the child’s health or welfare would be harmed unless visitation is granted, and that visitation serves the child’s best interests. In making this determination, the court must consider historical factors such as the time, if any, the child lived with or was supported by the family member, an established pattern of visitation or childcare, or any other relevant factor. Upon clear and convincing evidence of any one of those factors, the trial court may grant the visitation. The parents’ decision not to allow visitation should be given deference, but it is not conclusive when harm to the child would result.
In the instant case, the evidence supports the trial court’s findings of a historical pattern of visitation, and that harm would result for the child if visitation is not granted. Moreover, the trial court properly addressed Leach’s concerns about Warner’s husband’s inappropriate behaviors around the child by prohibiting Warner from leaving the child alone with her husband. Finally, the Court of Appeals did not address Leach’s challenges to the constitutionality of O.C.G.A. §19-7-3(c) since the issue was neither raised on the trial court level, nor ruled upon by the judge.
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Norrod v. Willingham, Case No. A21A0746, Georgia Court of Appeals, August 23, 2021.
The parties divorced in 2014. Willingham had primary custody of the children, and Norrod was required to pay child support. In 2018, Willingham petitioned for a modification of visitation and child support, and for contempt. Norrod counterclaimed for a modification in child support. On August 5, 2020, after a bench trial, the court entered a “Final Order” increasing child support, finding Norrod in contempt, and reserving the issue of attorney fees. Thereafter, on August 30, 2020, the trial court entered its attorney fees order. Norrod filed a motion for new trial on September 30, 2020. Two weeks later, before a hearing could be had on Norrod’s motion, the trial court dismissed the motion because it was filed more than 30 days after the August 5, 2020 “Final Order.” Norrod appealed.
Reversed and remanded. The trial court erred by not holding a hearing before denying Norrod’s motion. Uniform Superior Court Rule 6.3 requires a hearing on a motion for new trial, unless otherwise ordered by the court. Accordingly, since the trial court did not expressly except the motion from the oral argument requirement, the case must be reversed with direction for the trial court to comply with USCR 6.3. Moreover, Norrod timely filed his motion for new trial. Except in extraordinary cases, motions for new trial must be filed within 30 days of the entry of a judgment. O.C.G.A. §5-5-40(a). In the instant case, despite its nomenclature, the August 5, 2020 “Final Order” was not the final judgment since the attorney fees issue was reserved. Rather, the August 30, 2020 order was the final judgment. Accordingly, Norrod’s motion for new trial was timely filed within 30 days of the final judgment.
Harrison v. Whitaker, Case No. A21A0755, Georgia Court of Appeals, August 26, 2021.
The parties were divorce in 2015 in Wisconsin. The final decree gave sole legal and primary physical custody of their daughter to Whitaker, and visitation rights to Harrison. In 2020, Harrison filed to domesticate the Wisconsin order in Georgia, and to modify custody, alleging that Whitaker denied his access to the child. Whitaker answered, and attached the minor child’s affidavit electing to be in her mother’s custody and to not visit with her father. At trial, the judge met with the daughter outside of the parties’ presence. Subsequently, the court entered a final order granting Whitaker sole physical and legal custody, and awarding visitation to Harrison at the daughter’s sole discretion. This appeal ensued.
Judgment vacated and remanded for factual findings. Before a trial court can consider if a modification of custody is in a child’s best interest, it must first find that a material change of circumstances has occurred since the last order. In the instant case, the trial court did not make this threshold finding. Accordingly, the Court of Appeals remanded the case to the trial court for sufficient findings to enable appellate review of Harrison’s remaining challenges to the trial court’s order.
Perry v. Jenkins, Case No. A21A0969, Georgia Court of Appeals, August 31, 2021.
This is the second appeal of this case that arises from Perry’s petition to legitimate and obtain custody of his son with Jenkins. The trial court granted joint legal custody to both parties, with primary physical custody and final decision making authority to Jenkins. In the first appeal, the Court reversed the trial court in an unpublished opinion, and remanded the case with instructions for the trial court to give due consideration to joint physical custody. On remand, citing several reasons, the trial court found that joint physical custody is not in the child’s best interests. The court again awarded joint legal custody, with primary physical custody and final decision-making with Jenkins. Perry was awarded limited visitation until the child turned five years old, at which time his visitation increased. Perry brought this second appeal, again contending that the trial court did not give appropriate consideration to joint physical custody.
Affirmed. The State’s policy is to encourage parents to share in the rights and responsibilities of raising their children. In cases where both parents are fit and equally capable of providing for the child, a trial court must consider the option of joint custody. However, the court is not required to order joint custody, unless it finds that joint custody is in the child’s best interests and will best promote the child’s welfare and happiness. In making this determination, the trial court exercises broad discretion, which will not be disturbed on appeal if there is any evidence to support the decision. In the instant case, the trial court did not abuse its discretion since there was sufficient evidence to support its ruling. The Court of Appeals did not address Perry’s challenge to the limited visitation schedule before the child turned five, as that issue is now moot.
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