In November 2021 the Georgia Court of Appeals released three custody-related opinions, and two 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 November 2021:
Richello v. Wilkinson et al., Case No. A21A0679, Georgia Court of Appeals, November 1, 2021.
Facts:
In their Connecticut divorce and custody action, Richello and Mother temporarily agreed to Mother having physical custody of their children while living in Georgia with the Wilkinsons (maternal grandparents). Unfortunately, Mother died before the divorce was finalized. The Wilkinsons refused to return the children to Richello. Instead, appearing ex parte, they petitioned for, and obtained custody of the children. Richello was never served with their petition. The trial court also denied his motion to vacate based on lack of jurisdiction under the UCCJEA (Connecticut eventually ceded jurisdiction to Georgia). Thereafter, Richello did not appear for his deposition after notifying the Wilkinsons’ attorney that he would not be there. Consequently, the trial court sanctioned Richello by prohibiting him from opposing the Wilkinsons’ claims, or presenting evidence in support of his custody claim. The trial court awarded permanent legal and physical custody of the children to the Wilkinsons. This appeal followed.
Holding:
Reversed and remanded with direction. Richello cannot raise the defense of lack of service on appeal. Rather, he waived the defense by not raising it in his earliest pleading, as provided for in O.C.G.A. §9-11-12(h)(1)(B). Moreover, the trial court did not abuse its discretion by exercising jurisdiction under the UCCJEA. However, the court did abuse its discretion by prohibiting Richello from presenting evidence at the custody trial. O.C.G.A. §9-11-37 permits the trial court to sanction Richello for his failure to appear at his deposition. The drastic sanctions applied in the instant case, however, should be reserved for litigants acting in bad faith, or in willful disregard of a court order. Richello did not engage in a pattern of discovery abuse, and his failure to attend his deposition was excusable under the circumstances. Accordingly, the “draconian” sanctions imposed by the trial court were a clear abuse of discretion.
More importantly, however, under the United States and Georgia Constitutions, Richello has a fundamental right to the care and custody of his children. The presumption is strongly in favor of awarding custody to him. The Wilkinsons had the burden of showing, by clear and convincing evidence, that the children will suffer physical or significant long term emotional harm in Richello’s custody. Notably, most of their allegations were either misrepresentations of fact, or wholly untrue. They were therefore unable to carry their burden. Only if they had proven harm should the trial court have considered whether awarding custody to them would best promote the children’s welfare and happiness. Yet, the trial court abused its discretion by jumping directly to the best interests analysis despite no evidence of harm. Accordingly, the Court of Appeals reversed the custody award to the Wilkinsons, and remanded the case with instructions to grant custody to Richello.
PRACTICE NOTE: This case was a nightmare in so many ways. Not only did the children suffer the loss of their Mother, but they were also kept away from their Father. Their grandparents accomplished this by making numerous scurrilous and untrue allegations, including suggesting that Richello was responsible for Mother’s death. They also employed other questionable tactics, such as obtaining an ex parte order before filing the petition, not perfecting service upon Richello, and improperly including unsupported findings in the final order. The list goes on. In the end, it’s hard to understand how, or why, the trial court ruled as it did.
Untangling the difficult issues and challenges such as the ones involved in this case can get the best of us. Check out my Independent Custody Assessments, Litigation Support for Attorneys and Litigation Support for Clients pages to see what I can do to provide support and assistance in navigating through the difficulties, and obtaining a more favorable outcome for your client. The fresh perspectives and litigation support may be exactly what you need!
Teasley v. Clark, Case No. A21A1017, Georgia Court of Appeals, November 1, 2021.
This case was reviewed in last month’s update on Equitable Caregiver Law In Georgia. In one of the first opinions regarding O.C.G.A. §19-7-3.1, effective since July 1, 2019, the Court of Appeals holds that a trial court is not required to make specific findings of fact as long as it finds, by clear and convincing evidence, that the equitable caregiver satisfies all of the elements required in Subsection (d). 
For a complete review of the Equitable Caregiver Statute, and the Court of Appeals opinion in Teasley v. Clark, click here
Shultz v. Walker, Case No. A21A1034, Georgia Court of Appeals, November 3, 2021.
Facts:
Shultz and Walker were involved in a relationship, but not married when Walker gave birth to their child in 2015. Within a few days after the birth, they signed an acknowledgement of paternity and an administrative legitimation of the child, pursuant to the now-repealed O.C.G.A. §19-7-21.1. Eventually, the parties separated. They, however, maintained a co-parenting relationship until 2017, when Walker cut off all contact. In 2019, Shultz petitioned to legitimate the child. Neither party disclosed the administrative legitimation. After a trial, the court denied Shultz’s petition to legitimate, finding that he had abandoned his opportunity interest in a relationship with the child. Subsequently, raising the administrative legitimation for the first time, Shultz moved to set aside the trial court’s order pursuant to O.C.G.A. §9-11-60(d)(2) and (d)(3). The trial court denied Shultz’s motion, and this appeal followed.
Holding:
O.C.G.A. §9-11-60(d)(2) provides that a judgment may be set aside based on “fraud, accident, or mistake or the acts of the adverse party unmixed with the negligence or fault of the movant.” Under Subsection (d)(3) of O.C.G.A. §9-11-60, a judgment may be set aside if a non-amendable defect appears on the face of the record or pleadings. In the instant case, the trial court properly considered, and denied, the motion to set aside based on Subsection (d)(2) because of Shultz’s own failure to disclose the administrative legitimation. However, the trial court did not consider Shultz’s alternative ground to set aside pursuant to O.C.G.A. §9-11-60(d)(3). Accordingly, the Court of Appeals vacated the trial court’s judgment and remanded it with direction for the court to consider whether a non-amendable defect appears on the face of the record or pleadings.
Related Family Law Cases Released in November 2021:
Termination of Parental Rights // Right to Attorney
In the Interest of S.H., et al., children, Case No. A21A0784, Georgia Court of Appeals, November 3, 2021.
In a termination of parental rights action, a parent has a right to an attorney. The trial court must inform the parent of his/her rights prior to trial, O.C.G.A. §15-11-262(j), and give the parent an opportunity employ an attorney, or obtain a court-appointed attorney (if indigent). The parent also may waive the right to an attorney, subject to the trial court’s determination that the waiver is knowing, intelligent and voluntary. A parent’s failure to obtain an attorney may be considered a waiver if the court finds that the parent did not act with reasonable diligence and that the absence of an attorney is not due to reasons beyond his/her control.
Elements of a Valid Marriage // Marriage License
Chen v. Chen, Case No. A21A1674, Georgia Court of Appeals, November 29, 2021.
Failure to obtain a valid marriage license does not necessarily render a ceremonial marriage void. Rather, O.C.G.A. §19-3-1 sets out the three elements of a valid marriage. First, in accordance with O.C.G.A. §19-3-2, the parties must be able to contract. As such, they must be of sound mind, at least 18 years old (without parental consent), currently unmarried, and unrelated within the prohibited degrees. The second element, an actual contract, requires voluntary consent of the parties with no fraud, and a present intent to be married. The final element of a valid marriage is consummation, or cohabitation of the spouses.
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