In August 2022, the Georgia appellate courts released seven family law opinions. Four cases were custody related, two of which involved equitable caregiver issues. Scroll down for more.
Custody-Related Cases Released in August 2022:
Newsome v. Graham, Case No. A22A0799, August 15, 2022.
Graham (the mother) had primary custody of the minor child, and Newsome (the father) had visitation rights. Alleging that the child suffered emotional problems in Newsome’s custody, Graham filed a modification action seeking sole custody. A process server served the complaint and summons at Graham’s home by placing them at the feet of Newsome’s wife, who refused to take the papers from him. Newsome filed a motion to dismiss for lack of service, but the trial court denied his motion. At the final trial, the parties announced that they settled the issues. They read the settlement into the record, and Newsome confirmed his agreement to the terms of the agreement. Later, however, he refused to sign the written agreement memorializing those terms. The trial court granted Graham’s subsequent motion to enforce settlement. Newsome appealed.
Affirmed. O.C.G.A. §9-11-4(e)(7) permits service of a summons and complaint “by leaving copies thereof at the defendant’s dwelling house or usual place of abode with some person of suitable age and discretion then residing therein.” Newsome’s wife testified that she gave the papers to Newsome, and he confirmed that he received them. Moreover, the evidence was sufficient to support the trial court’s ruling, despite Newsome’s contention that he was served with blank pages. Furthermore, with regard to the settlement agreement, an oral settlement agreement is enforceable if its existence is undisputed. In the instant case, there cannot be any dispute as to the existence of an agreement since it was read into the court record, and Newsome confirmed the agreement. Thus, the trial court did not err in enforcing the settlement agreement.
In the Interest of C.C., et al., Children, Case No. S22A0584, August 23, 2022.
The parents of three minor children consented to their children being adjudicated as dependent within the meaning of O.C.G.A. §15-11-2(22). They also consented to the children being in the temporary custody of the Department of Family and Children Services (DFCS). However, on religious grounds, the parents objected to DFCS administering routine vaccines to the children. A hearing was held, and the Juvenile Court denied their right to object, finding that their religious objections were insincere. The trial court further held that neither the First Amendment to the United States Constitution, nor O.C.G.A. §15-11-30 prohibited DFCS from vaccinating the children. This appeal followed.
Remanded with direction. In this case of first impression, the parents’ objection to vaccinating their children is based on their religious rights under the First Amendment to the United States Constitution. They also argue a statutory right to object under O.C.G.A. §15-11-30, or alternatively, that the statute unconstitutionally violates the federal prohibition of overly vague statutes. Central to the foregoing claims is the necessary element of the parents’ sincerity of their religious beliefs. Yet, the Juvenile Court applied the wrong standard in concluding the parents were insincere. Rather, the court should assess the credibility of their objection to vaccinating the children, and whether it is truly religiously motivated, or based on secular concerns. In doing so, the court can weigh factors such as their knowledge of and reliance on religious teachings, how long they have held their beliefs, and whether they have wavered in their religious beliefs and actions.
Hackett v. Stapleton et al., Case No. A22A0773, August 26, 2022.
When the minor child was six months old, his grandmother obtained guardianship. Shortly thereafter, without a court order, the grandmother gave primary care of the child to the Stapletons. Over the years, Hackett visited with her son. The biological father also periodically visited, and he paid court-ordered child support. When the child was nine years old, Hackett refused to return him after a visit. The Stapletons sought and obtained expedited temporary sole legal and physical custody of the child. They also petitioned for equitable caregiver status, and for permanent custody. Additionally, the biological father petitioned to legitimate the child. A Guardian ad Litem (GAL) recommended that Hackett have custody of the child, that he be legitimated, and that the Stapletons and the father have visitation. Instead, the trial court denied the legitimation, granted the Stapletons status as equitable caregivers with legal and physical custody, with Hackett having visitation. Hackett appealed.
By clear and convincing evidence, the Stapletons satisfied the elements required by O.C.G.A. §19-7-3.1. Specifically, the evidence was that they were fully committed to their parenting role, had consistently cared for the child, and had established a bond with him. Moreover, the evidence was that Hackett allowed the custodial relationship to continue for many years, and therefore fostered or supported it. Additionally, the grandmother kept the child support payments, so the Stapletons were not financially compensated for undertaking the parental responsibilities. Finally, the child’s therapist testified that the child may suffer long term emotional harm if his relationship with the Stapletons was discontinued. The GAL, however, testified that there was no evidence that harm would come to the child in Hackett’s custody.
The adjudication of the Stapletons as equitable caregivers does not divest Hackett of her parentage. Rather, pursuant to O.C.G.A. §19-7-3.1(g), once the Stapletons were given equitable caregiver status, the trial court was authorized to enter an order establishing their parental rights and responsibilities, including custody and visitation. For guidance on resolving custody disputes in equitable caregiver cases, the trial court should look to the best interests of the child factors contained in O.C.G.A. §19-9-3(a)(2). In the instant case, the evidence was contrary to the trial court’s finding that the child would suffer long term harm if he was returned to his mother’s custody. Accordingly, the Court of Appeals remanded the case to the trial court for consideration of the statutory best interests factors. The Court also noted that joint custody may be a possible alternative for the trial court to consider.
Finally, the trial court did not err in denying the biological father’s petition to legitimate after finding that he had abandoned his opportunity interest in developing a relationship with the child. The father did not provide support or assume any responsibility for the child until after his birth, and he only provided child support after he was court-ordered to do so. Moreover, the biological father waited until the child was nine years old to file his legitimation petition, and he did not maintain consistent contact with the child until then.
For background and recent appellate opinions regarding the Equitable Caregiver Statute, click here.
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McDonald v. Reyes, Case No. A22A1015, August 31, 2022.
McDonald is the mother of the two minor children at issue in this case. Reyes is McDonald’s former step-father. In 2018, while she was incarcerated, McDonald requested her attorney to facilitate placement of the children in the temporary custody of Reyes, who was then married to her mother (now divorced). The children have been in his custody since. In 2019, Reyes petitioned for equitable caregiver status pursuant to O.C.G.A. §19-7-3.1, and for permanent custody of the children. The trial court denied McDonald’s subsequent motion to dismiss, adjudicated Reyes to be an equitable caregiver, and granted physical and legal custody of the children to him. McDonald appealed.
Reversed. Under O.C.G.A. §19-7-3.1, a person may petition for standing as an equitable caregiver, and for rights relating to the child, including custody. Subsection (i) of the code section, however, provides that an equitable caregiver action is not authorized when the Division of Family and Children Services (DFCS) “has an open child welfare and youth services case involving such child or his or her parent” (emphasis added). In the instant case, there was no open DFCS case involving the children at issue. McDonald, however, was the subject of an open DFCS investigation involving other children. Thus, in accordance with O.C.G.A. §19-7-3.1(i), even though the children in the instant case were not the subject of the open DFCS investigation, McDonald was, so the trial court should have dismissed Reyes’ petition.
For background and recent appellate opinions regarding the Equitable Caregiver Statute, click here.
Related Family Law Cases Released in August 2022:
Termination of Parental Rights // Motion for New Trial
In the Interest of J.D.H., Jr., a child, Case No. A22A0871, Georgia Court of Appeals, August 9, 2022.
Father was entitled to a hearing on his motion for new trial challenging subject matter jurisdiction and the sufficiency of the evidence supporting the termination of his parental rights. A motion for new trial was the proper means for Father to seek re-examination of the issues, and he had a statutory and constitutional right to a hearing on the motion. Thus, since Father expressly requested a hearing, and never waived his right to one, the Court of Appeals reversed the trial court’s denial of his motion for new trial, and remanded the case so that a hearing can be held.
In the Interest of K.P., a child, Case No. A22A0921, Georgia Court of Appeals, August 9, 2022.
The Department of Family and Children Services (DFCS) moved to vacate a preliminary protective order since the issues in its dependency complaint were resolved. The trial court denied the motion, holding that the issue was moot since the case was closed. The issue of preliminary protective order, however, was not moot since Mother could still suffer collateral consequences from the order, such as damage to her reputation as a nurse, or use of the order as evidence in subsequent custody or criminal actions against her. Thus, the juvenile court’s order is reversed and the case is remanded with direction to consider DFCS’s motion.
Vaughn v. Vaughn, Case No. A22A0621, Georgia Court of Appeals, August 29, 2022.
A trial court is vested with wide discretion in contempt actions to interpret and clarify its own orders. However, the court should only construe the underlying order as written, and not revise it so as to amount to a modification. Furthermore, the trial court cannot attempt to solve problems by supplying additional terms or provisions that were omitted from the original settlement agreement. The question on appeal is “whether the clarification is reasonable or whether it is so contrary to the apparent intention of the original order as to amount to a modification.” Finally, the ex-husband cannot claim on appeal that the trial court erred in awarding the ex-wife money for repairs to the marital home, since he invited any possible error himself by conceding that he may owe the money to her.