October 2021 was another busy month for the Georgia Court of Appeals. The Court released three custody-related opinions, and five other opinions relevant to family law.
The Statewide Judicial Emergency ended on June 30, 2021. See updates on 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 October 2021:
Skinner v. Miles, Case No. A21A0980, Georgia Court of Appeals, October 4, 2021.
This is the first published opinion of many to come regarding the Equitable Caregiver Statute, O.C.G.A. §19-7-3.1, effective in Georgia since July 1, 2019. Pursuant to the statute, the Georgia Court of Appeals affirmed the trial court’s designation of the mother’s former same-sex partner as an Equitable Caregiver, and the implementation of a parenting plan.
For a complete review of the Equitable Caregiver Statute, and the Court of Appeals opinion in Skinner v. Miles, click here
Frith v. Harvey, Case No. A21A0892, Georgia Court of Appeals, October 6, 2021.
In 2014, the trial court temporarily modified the parties’ 2012 consent order by awarding Frith temporary primary custody of the children, and terminating his child support obligation. Shortly thereafter, the children returned to Harvey’s custody. However, no court order reflected this change, and Frith did not resume making child support payments. Four years later, in 2018, the trial court dismissed the modification action for want of prosecution. At that point, Harvey sought to have Frith held in contempt for not paying child support after the children returned to her custody. The trial court did not hold Frith in contempt. However, the court concluded that the original 2012 child support order remained enforceable since the temporary order did not survive the dismissal of the modification action. Frith appealed.
Reversed. A temporary order remains in effect until it is modified by another court order, or the litigation terminates. It follows that in the instant case, the temporary order remained in effect until the case was dismissed in 2018. Accordingly, the trial court erred in finding that the 2012 child support obligation was enforceable from 2014 to 2018, while the temporary order was in effect.
Poe, et al. v. Cantrell, Case No. A21A1142, Georgia Court of Appeals, October 6, 2021.
Cantrell lived with Mother when their daughter was conceived and born. He acknowledged paternity, and was named as the father on the birth certificate. Thereafter, Cantrell and Mother married and had another child. Eventually, the Department of Family and Children Services (DFCS) placed the children in foster care with the Poes. Subsequently, Mother voluntarily relinquished her parental rights. However, Cantrell complied with a reunification plan, and the children returned to his custody after DFCS dismissed the dependency action. Meanwhile, the Poes petitioned to adopt the children, and they regained custody pending the adoption. At trial, they presented evidence that the daughter was not Cantrell’s biological child. Mother also testified to the same. The trial court held that the Poes lacked standing to contest Cantrell’s paternity, denied their motion for DNA testing, and concluded that Cantrell is the legal father. The trial court also denied the adoption. This appeal followed.
Affirmed. By operation of law, when Cantrell married Mother and recognized the child as his own, he became the child’s legal father under O.C.G.A. §19-8-1(11), and the child was rendered legitimate in accordance with O.C.G.A. §19-7-20(c). Moreover, the Poes, as third-party foster parents, have no legal standing to contest Cantrell’s paternity or to seek custody. See Wallace v. Chandler. Third parties who are neither stepparents nor relatives of a child may adopt the child only if both parents surrender their parental rights. Cantrell did not surrender his parental rights. An exception, however, is when there is clear and convincing evidence that the parents abandoned the child, or failed to provide proper parental care or control, and the adoption is in the child’s best interest. There was no evidence that Cantrell abandoned his daughter. Moreover, the dismissal of the dependency action evidenced his proper care and control of the child.
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Related Family Law Cases Released in October 2021:
Juvenile Court Jurisdiction // Custody
In the Interest of B.W., a child, Case No. A21A1121, Georgia Court of Appeals, October 13, 2021.
The Juvenile Court has exclusive jurisdiction over child dependency actions. In such cases, the Juvenile Court has authority to award temporary custody of a dependent child, but it does not have authority to award permanent custody. Rather, the Superior Court has exclusive jurisdiction over permanent custody issues.
Contempt // Death of Party
Estate of Suddeth v. Williams as Executor of the Estate of Carolyn C. Suddeth, 361 Ga. App. 433 (2021)
An action seeking to hold a deceased party in contempt of a divorce decree should not be brought against the estate of the deceased. Rather, the real party in interest is the personal representative of the deceased’s estate, i.e., the administrator or executor.
Child Support // Self-Employment Income
Franco v. Eagle, 361 Ga. App. 506 (2021)
The trial court should carefully review income and expenses from self-employment in determining the appropriate amount of gross income attributable to a party for purposes of determining child support. Indeed, the child support guidelines recognizes that this amount may differ from business income as reported for tax purposes. O.C.G.A. §19-6-15(f)(1)(B). Accordingly, tax returns may not be sufficient evidence for determining a self-employed party’s income. As in the instant case, the trial court may impute income to a party if that party does not produce reliable evidence of his/her income or ability to pay, and if there is no other available evidence.
In the Interest of A.M.B. et al., children, Case No. A21A1208, Georgia Court of Appeals, October 21, 2021.
A child may be adjudicated as dependent if, because of abuse or neglect, s/he is in need of the court’s protection. O.C.G.A. §15-11-2(22)(A). However, a parent’s failure to maintain stable housing and employment does not necessarily rise to the level of abuse or neglect. Rather, abuse, as defined by the Code, involves physical or emotional injury, or family violence committed in the child’s presence. Likewise, neglect, as defined by the Code, is a failure to provide proper parental care or control, subsistence, education or other needs for the child. Moreover, although the court may consider evidence of past and potential future dependency, there must be clear and convincing evidence of present dependency and parental unfitness to support an adjudication of dependency.
Construction of Settlement Agreements
Dean v. Dean, Case No. A21A0818, Georgia Court of Appeals, October 29, 2021.
The meaning and effect of settlement agreements should be determined by using the usual rules for construction of contracts. The cardinal rule is to ascertain the intention of the parties. Accordingly, all contract terms must be considered together, and should be construed in such a manner that does not render any provision meaningless or mere surplusage. Moreover, any ambiguities should be construed most strongly against the party who prepared the agreement.