In April 2022, the Georgia Supreme Court and Court of Appeals released four custody related opinions, and three other opinions relevant to family law. Scroll down for more.
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Custody-Related Cases Released in April 2022:
Hayle v. Ingram, Case No. A22A0721, April 14, 2022.
Shortly after the minor child’s birth in 2017, DFCS placed the child in the temporary custody of Ingram, the maternal grandmother. The Mother, who suffered from ongoing substance abuse and mental health issues, and Hayle, the biological father, were allowed only supervised visits. Eventually, Ingram petitioned for custody, and Hayle counterclaimed to legitimate and obtain custody of the child. The evidence at trial was that Hayle and the Mother had a volatile relationship, and that Hayle was physically and emotionally abusive to her, one time in the presence of the child. Hayle’s current girlfriend also reported that he was abusive, although she later retracted her reports. The trial court legitimated the child, but granted permanent custody to Ingram, with Hayle continuing to have only supervised visitation. Hayle appealed.
Custody disputes between a biological parent and grandparents (and certain other relatives) are governed by O.C.G.A. §19-7-1(b.1). The statute establishes a rebuttable presumption that awarding custody to the parent is in the child’s best interests. However, the presumption may be rebutted by a showing that awarding custody to the third party is in the child’s best interests. Overcoming the presumption requires clear and convincing evidence that the child will suffer physical, or significant long-term emotional harm in the parent’s custody. In the instant case, Hayle did not always exercise visitation or regularly pay his child support. Moreover, his pattern of abusive behaviors supported the court’s finding that harm would come to the child in his custody. Finally, as appellant, Hayle had the burden of proving error in the trial court. However, he failed to transmit the complete trial court record to the Court of Appeals to support his arguments.
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Corley v. Jackson, Case No. A22A0540, Georgia Court of Appeals, April 19, 2022.
Following the legitimation of his child in 2020, the trial court granted joint legal custody to Corley and Jackson (the child’s mother), with the latter having primary physical custody. The court also awarded child support and attorney fees to Jackson Thereafter, when Corley failed to pay the attorney fees, Jackson filed a petition for contempt. Corley also petitioned to modify custody, alleging that the child’s grandmother and Jackson were abusive to the child, and that Jackson was not adequately providing educational support for the child. The trial court denied Corley’s petition to modify custody and child support, and found him in contempt for failure to pay the attorney fees. Corley appealed.
Affirmed. To prevail in his custody modification claim, Corley was required to show a material change of condition affecting the child’s welfare since the last custody award. If he carried that burden, the trial court was then required to consider whether modifying custody is in the child’s best interests. In the instant case, Corley was unable to satisfy the first prong by showing a material change. Rather, DFCS investigated the abuse allegations, and closed the case after finding “no problems.” Moreover, Jackson testified that she was addressing the child’s educational issues with the school. Thus, the evidence supported the court’s conclusion that no material changes in circumstances adversely affecting the child had occurred. Additionally, Corley’s challenge to the finding of contempt failed. In general, a trial court has broad discretion in contempt matters. Yet, here, the fees were also awarded under O.C.G.A. §19-9-3(g), which specifically provides for enforceability by contempt.
McAlister v. Clifton, Case No. S22A0144, Georgia Supreme Court, April 19, 2022.
McAlister and Clifton are former domestic partners. McAlister adopted a child who Clifton never formally adopted. The parties eventually separated, entering into an agreement allowing visitation for Clifton, and requiring her to pay certain school expenses. A few years later, McAlister began denying visitation, and Clifton stopped paying school expenses. Clifton petitioned for visitation pursuant to the equitable caregiver statute, OCGA §19-7-3.1. McAlister counterclaimed for school expenses. Just days before the child’s eighteenth birthday, the trial court found that Clifton had standing as an equitable caregiver, awarded her parenting time, and denied McAlister’s counterclaim. McAlister appealed, challenging the constitutionality of the equitable caregiver statute. The Court of Appeals transferred the appeal to the Supreme Court. In December 2021, the Supreme Court remanded the case to the trial court with instructions to dismiss it. However, upon reconsideration, the Court vacated and withdrew its opinion, and substituted it with this one.
Affirmed in part, vacated in part and remanded with direction. In this first Supreme Court challenge to the constitutionality of the equitable caregiver statute, the Court did not reach the issue, and instead declared it moot. Notably, since the child is now 18 years old, the trial court’s award of parenting time has terminated by operation of law. Moreover, since the trial court awarded Clifton no rights other than the visitation, McAlister was unable to show that the award would have continuing adverse collateral consequences affecting the child in an ongoing probate court guardianship case. Furthermore, the question of the statute’s constitutionality will likely be raised again in another appeal, and thus likely will not evade review. Accordingly, McAlister’s challenge to the constitutionality of O.C.G.A. §19-7-3.1 is moot.
Additionally, the trial court did not err in denying McAlister’s counterclaim for school expenses. Indeed, McAlister failed to provide convincing evidence of damages, an essential element of her claim. She produced no checks or other evidence that she paid the school expenses. Moreover the trial court found her testimony that she paid the expenses not credible.
Originally filed in the Georgia Court of Appeals, this case was transferred to the Georgia Supreme Court. To watch the oral arguments in the Court of Appeals, click here.
For background and recent Court of Appeals opinions regarding the Equitable Caregiver Statute, click here.
Sprenkle v. Sprenkle, Case No. A22A0573, Georgia Court of Appeals, April 21, 2022.
The parties were divorced in New York. Father was awarded primary custody of the children. Thereafter, he and the children moved to Georgia. In 2014, Father attempted to domesticate the New York judgment in Georgia and modify custody pursuant to O.C.G.A. §19-9-40, et seq., the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA). However, the New York court retained jurisdiction. In 2020, Father again attempted to domesticate and modify the New York custody order. He also filed a motion in New York seeking a declaration that the court no longer retained exclusive, continuing jurisdiction over the custody proceedings. The Georgia trial court nonetheless dismissed Father’s petition, citing New York’s retention of jurisdiction years earlier. Mother then filed a post-judgment motion for attorney fees pursuant to O.C.G.A. §9-15-14(b). Finding that Father’s 2020 petition to domesticate lacked substantial justification, the trial court awarded fees to Mother. Father appealed.
Mother’s post-judgment motion for attorney fees pursuant to O.C.G.A. §9-15-14(b) did not toll the time for Father to appeal the dismissal of his petition. Thus, the Court of Appeals dismissed Father’s challenge to the trial court’s dismissal order as untimely, and addressed only the attorney fees order. The trial court predicated its award of fees on its finding that Father’s 2020 petition lacked substantial justification. This, however, was an abuse of discretion. Rather, the UCCJEA supported Father’s position. It had been over six years since New York retained jurisdiction. Moreover, under the UCCJEA, before summarily dismissing Father’s petition, the trial court should have consulted with the New York court about whether New York would relinquish jurisdiction in favor of Georgia as a more convenient forum. O.C.G.A. §19-9-66(b). Accordingly, since Father’s petition was not substantially frivolous, groundless or vexatious, the attorney fees awarded pursuant to O.C.G.A. §9-15-14(b) is reversed.
Related Family Law Cases Released in April 2022:
In the Interest of S.W., 363 Ga. App. 666 (2022).
Custody orders in dependency proceedings are directly appealable. In a dependency action, temporarily awarding custody to a biological parent and relieving DFCS of further responsibility for the child merely changes the action to a private dependency action. However, O.C.G.A. §15-11-111(b)(2) mandates that the dependency order shall include findings of fact made in accordance with O.C.G.A. §9-11-52(a). At a minimum, the order should contain findings of clear and convincing evidence that present dependency exists because of a parent’s unfitness, and that a custody award is best for the child’s protection and physical, emotional, mental and moral welfare. Finally, the order should provide that returning the child to his/her unfit parent would be contrary to his/her welfare.
Subject Matter Jurisdiction
Emerman v. Hetherington, Case No. A22A0615, Georgia Court of Appeals, April 21, 2022.
O.C.G.A. §19-5-2 requires that a party filing for divorce be a bona fide resident of the State of Georgia for six months before filing a petition. The party bears the burden of showing that s/he maintained actual residence in Georgia with the intent to remain in Georgia indefinitely. If s/he fails to carry that burden, then the trial court lacks subject matter jurisdiction and cannot grant the divorce.
Termination of Parental Rights // Zoom Hearing
In the Interest of N.P., a child, Case No. A22A0583, Georgia Court of Appeals, April 22, 2022.
The hearing on the termination of Mother’s parental rights was held virtually via Zoom in December 2020 while the Supreme Court’s Order Declaring Statewide Judicial Emergency was in effect. Mother objected to the hearing being held virtually. O.C.G.A. §15-11-19(a) provides that in juvenile court proceedings a party has a right to be present. The code section, however, does not specify physical presence. Moreover, Uniform Juvenile Court Rule 12.2 expressly provides for termination hearings to be held by video conference. Finally, Mother did not assert any harm by holding the hearing virtually. Rather, she and her attorney were able to communicate via text. Also, she was unable to show how any technical issues impacted her ability to effectively present her case.
In the instant case, the State was required to show that the child would likely suffer harm not only if she is returned to Mother’s custody, but also if she remains in prolonged foster care while maintaining her relationship with Mother. Evidence of both potential outcomes is required to justify a termination of parental rights. Indeed, in this case, Mother’s refusal to acknowledge and seek treatment for her ongoing mental health problems, and her refusal to accept responsibility for the circumstances leading to the child being taken from her custody, supported the trial court’s finding that harm will likely come to the child in both situations. Accordingly, the trial court did not err in terminating Mother’s parental rights.