In May 2022, the Georgia Court of Appeals released two custody related opinions, and two other opinions relevant to family law. Scroll down for more.
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Custody-Related Cases Released in May 2022:
Jefferson v. O’Neal, Case No. A22A0532, May 24, 2022.
In 2011, when the minor child at issue was conceived and born, Kawanna, the mother, was married to Jefferson, and having an extra-marital affair with O’Neal. Several years later, she learned that O’Neal, not Jefferson, is the child’s biological father. She informed O’Neal of this, and he began establishing a relationship with the child. Meanwhile, Kawanna and Jefferson divorced, and they shared joint custody of the child. In 2020, O’Neal petitioned to legitimate the child. Jefferson did not file a response. After a hearing and an in-chambers conference with the child, the trial court found that O’Neal had not abandoned his opportunity interest in establishing a relationship with the child, and that legitimation was in the child’s best interests. The trial court also held that it was in the child’s best interests to maintain “reasonable ties” with Jefferson. Jefferson appealed from the order of legitimation.
Vacated and remanded for additional proceedings. The child was born while Jefferson and Kawanna were married. Thus, in accordance with O.C.G.A. §§19-7-20(a) and 19-7-22(a)(2)(B), Jefferson is the child’s legal father. The trial court can consider O’Neal’s petition to legitimate the child only after it first terminates Jefferson’s parental rights based on a finding that it is in the child’s best interests. Indeed, a higher standard applies in legitimation cases when the child already has a legal father. In the instant case, the trial court was unclear as to what is in the child’s best interests since it did not terminate Jefferson’s parental rights and found that the child should continue to have ties with him. Thus, upon remand, the court must make explicit findings as to whether terminating Jefferson’s parental rights is in the child’s best interest.
Moreover, O’Neal did not know about his paternity until shortly before he filed his petition to legitimate in 2020. Thus, the evidence did not support Jefferson’s argument that O’Neal knowingly or fraudulently concealed his paternity from Jefferson, a fact that, if true, would have barred O’Neal from asserting his opportunity interest in a relationship with the child. Similarly, Jefferson cannot assert that collateral estoppel applies as a bar to the legitimation. Rather, O’Neal was not a party to the divorce action, the legitimation issues were not considered, and O’Neal is not bound by the final judgment.
PRACTICE NOTE: The fact that Jefferson is the child’s legal father added an extra twist to this case. Untangling the issues and challenges in difficult custody cases 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 to obtain a more favorable outcome for your client. The fresh perspectives and litigation support may be exactly what you need!
Makin v. Davis, Case No. A22A0399, Georgia Court of Appeals, May 24, 2022.
Makin (Father) and Davis (Mother) were married, and had one minor child in 2014 while living Georgia. Thereafter, the family moved to the United Kingdom (UK). However, in 2017, Davis and the child returned to Georgia. Makin filed for and obtained an order in the UK setting out their respective custodial obligations, and their agreement that the UK court retain jurisdiction over the custody issues. Davis consented to domesticating the UK order in Georgia. Eventually, Davis initiated another custody action in the UK. She also filed for divorce in Georgia in 2019. A few months later, the UK court entered its order on Davis’ custody requests. Meanwhile, the Georgia court issued the final judgment and decree of divorce, granting primary custody to Davis. Shortly thereafter, Makin petitioned to domesticate and register the 2019 UK order in Georgia, but the trial court denied his request. This appeal followed.
Reversed. The Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), codified at O.C.G.A. §19-9-40 et seq. treats orders from foreign countries the same as orders from other U.S. states. O.C.G.A. §19-9-85 sets out the requirements for registering and contesting the registration of foreign custody orders, and the court’s obligations. In the instant case, Davis did not carry her burden under O.C.G.A. §19-9-85(d) of showing that the 2019 UK Order should not be registered. Firstly, the UK court had jurisdiction when it entered the Order. Secondly, the Order was never vacated, stayed or modified. Instead, it was ongoing, without an expiration date. Finally, Davis submitted to the jurisdiction of the UK court, and therefore could not claim that she received no notice of the proceedings. Accordingly, because Davis failed to carry her burden as required by O.C.G.A. §19-9-85(d), the trial court was required to confirm registration of the 2019 UK Order.
Related Family Law Cases Released in May 2022:
Dependency // Truancy
In the Interest of B.M.R., a child, Case No. A22A0092, Georgia Court of Appeals, May 4, 2022.
Upon clear and convincing evidence that a child is dependent, the juvenile court may remove the child from a parent or guardian, and place the child in the protective custody of DFCS. In relevant part, a child is dependent if s/he has been abused or neglected, and in need of the court’s protection. A failure to provide proper parental care or control, subsistence, education or other care may constitute negligence. In the instant case, the child’s high number of unexcused absences and long periods of missed school, and the Grandmother/guardian’s unwillingness to address the truancy was clear and convincing evidence of negligence sufficient to remove the child from Grandmother’s custody.
Dependency // Right to an Attorney
In the Interest of N.C. et al., children, Case No. A22A0554, Georgia Court of Appeals, May 11, 2022.
In a dependency action, the parties and the children have the right to an attorney at all stages of the proceedings. O.C.G.A. §15-11-103(a). A parent proceeding pro se is obligated to comply with Court rules to enable the Court to determine the basis and substance of the issues on appeal. In the instant case, the mother did not meet her burden of showing fraud or reversible error in the lower court.