In September and October 2022, the Georgia Court of Appeals released six opinions and orders relevant to family law. Four cases were custody related. Scroll down for more.
Custody-Related Opinions and Orders Released in September and October 2022:
Byrne v. Byrne, Case No. A22A1080, September 1, 2022.
Mother filed for divorce, seeking temporary and permanent legal and physical custody of the parties’ children, support and property. Father counterclaimed for joint legal and physical custody and an equitable division of property, debt and expenses. On a temporary basis, the trial court awarded primary physical custody to Mother and visitation to Father. However, at the final trial, the court awarded the parties joint legal custody with Father having physical custody of the children, and Mother having visitation. The trial court added a provision limiting overnight guests to family members when the children are in a parent’s custody. Additionally, the trial court equitably divided the parties’ property and debt. Mother appealed.
The trial court exercises broad discretion in child custody determinations in divorce actions. Even though Father did not plead for primary physical custody, the court, in its discretion, may award custody to him upon a finding that it is in the children’s best interests. When both parents are fit, the Court of Appeals will not interfere with the custody decision if the trial court did not abuse its discretion, and if any evidence supports the award. Moreover, when both parents are fit, the trial court must consider joint custody, but it is not required to order joint custody unless it is in the children’s best interests. In the instant case, the evidence supported the court’s award of primary custody to Father since he provided greater stability, and since he is more cooperative than Mother, and would allow her more access to the children than she would for him.
O.C.G.A. §19-9-3(a)(8) provides that upon a request by a party on or before the close of evidence, the trial court must provide specific written findings of fact of the bases for the custody decision. Moreover, upon notice to the parties, the trial court may rely upon evidence from the temporary hearing. However, the parties’ demeanor and cooperativeness throughout the proceedings are not evidence. Thus, the trial court may consider those factors without prior notice to the parties. Finally, the provision limiting overnight guests to family members when the children are in a parent’s custody is neither overly broad, nor unduly burdensome. Rather, the provision is applicable to both parties, and only prohibits overnight stays by unrelated guests.
PRACTICE NOTE: Child custody cases can be so very difficult for both the attorney, and the client. Untangling the issues and building a strong case can be challenging. Check out my Independent Custody Assessments, Litigation Support for Attorneys and Litigation Support for Clients pages to see how I can support and assist you and your client in navigating through the difficulties, and obtaining a more favorable outcome. The fresh perspectives and litigation support may be exactly what you need!
Maxwell v. Johnson, Case No. A22A0750, October 11, 2022.
The parties’ 2011 parenting plan provided for joint legal custody of their minor child. Maxwell (Mother) had primary physical custody and Johnson (Father) had visitation. Thereafter, in 2016 and Johnson unsuccessfully petitioned for a modification of custody. In 2018, he filed another petition that was never resolved. In 2020, Johnson brought the instant modification action, alleging various changes in circumstances affecting the best interests of the minor child. The trial court met with the almost-13-year-old child in chambers, and after hearing the evidence, modified custody, awarding primary physical custody to Johnson and visitation for Maxwell. This appeal followed.
Reversed. A trial court can modify custody if there is evidence of a change in material conditions or circumstances of a party or child that affects the welfare of the child, since the last custody order. If the court finds that a material change has occurred, it may then consider whether modifying custody is in the child’s best interests. In the instant case, the trial court erred by failing to make the threshold finding of a material change in circumstances before moving on to the question of whether modification is in the child’s best interests.
The trial court could consider changes that occurred since 2011 (date of the last custody award). However, the denial of Johnson’s 2016 action also has a preclusive effect on the court’s considerations. In fact, the evidence was that there were no material changes of circumstances since Johnson’s allegations were ongoing issues dating back to before 2016. Moreover, the minor child’s preferences and desires as expressed to the court in the chambers conference also did not constitute a material change in circumstances. Under O.C.G.A. §19-9-3(a)(6), although the trial court is required to consider the child’s desires, it is not bound by the child’s desires. Instead, the trial court exercises its own discretion. Finally, parental disputes over a change of school do not constitute a change in circumstances absent evidence that the child’s welfare has, or will be impacted by the school change.
Crystal H. Meador v. Linsey E. Meador III, Case No. A22A0716, October 11, 2022.
Upon their divorce, the parties shared joint legal custody of their three minor children. Mother (Appellant) had primary physical custody, and Father (Appellee) had secondary custody. Four months later, Father filed a modification action alleging that Mother planned to move out of state, that the daughter’s behaviors changed, that Mother’s boyfriend caused issues, and that Mother and her boyfriend abused alcohol. After a five-day hearing, the trial court granted Father’s petition by awarding custody to him and supervised visitation for Mother. Mother appealed.
Vacated and remanded. The trial court erred by focusing exclusively on a best interests analysis, with no consideration to the threshold question of whether a change in circumstances or conditions had occurred since the final divorce judgment. Thus, the Court of Appeals vacated the trial court’s judgment and remanded the case with instructions for the trial court to make the requisite findings as to changes of circumstances before addressing whether a modification is in the children’s best interests.
Denise Wilkinson et al. v. Joseph Richello, Case No. A23D0070, October 12, 2022.
The trial court dismissed the Wilkinsons’ petition pursuant to O.C.G.A. §19-7-3.1(g) to be adjudicated as equitable caregivers and granted visitation . The Wilkinsons filed an application for discretionary review of the trial court’s dismissal.
Under O.C.G.A. §5-6-34(a)(11), judgments and orders awarding, modifying or refusing to modify child custody and visitation are directly appealable. Thus, since the trial court’s order is subject to direct appeal, the Wilkinsons’ application for discretionary appeal is accepted.
Related Family Law Cases Released in September and October 2022:
Dependency // Admissibility of Report
In the Interest of M.C., Case No. A22A0655, Georgia Court of Appeals, September 20, 2022.
A juvenile court may place a child in DFCS custody upon clear and convincing evidence that the child is dependent and in need of the court’s protection due to abuse or neglect. A child is deemed neglected if s/he is without proper parental care or control, subsistence, education or parental supervision. In making this determination, the court may consider a parent’s egregious conduct toward the child of a physical, emotional or sexual cruel or abusive nature. Although past parental misconduct is a relevant consideration, there must also be evidence of present dependency. This must include a finding of parental unfitness, which is misconduct, either intentional or unintentional, resulting in the abuse or neglect of the child, or a physical or mental inability to care of the child.
The dependency order must include specific findings of fact demonstrating clear and convincing evidence of present dependency resulting from the mother’s unfitness. Finally, the DFCS case manager was subject to cross examination regarding her first-hand knowledge and experiences in the case. Thus, the juvenile court did not err in admitting into evidence over objection, her report prepared for court.
First Key Homes of Georgia, LLC et al. v. Robinson, Case No. A22A0885, Georgia Court of Appeals, October 31, 2022.
An attorney is disqualified and cannot represent a client against a former client in litigation that is of the same general subject matter, and grows out of an event that occurred during the attorney’s representation of the former client. Additionally, an attorney’s conflict of interest is imputed to all of the attorneys in the same firm, thereby subjecting the entire firm to disqualification.