Closing out the year, in December 2022, the Georgia Court of Appeals and the Georgia Supreme Court each released one opinion related to custody. Scroll down for more information.
Custody-Related Opinions Released in December 2022:
Barnhill et al. v. Alford, Case No. S22A1075, December 20, 2022.
The minor child at issue in this case was born out of wedlock to Barnhill (father) and Hush (mother). Hush had primary custody of the child, and they lived with Alford, the maternal grandmother, who helped raise and support the child. However, when the child was five years old, Hush died, and the child went to live with Barnhill and his wife, Katheryn. Two months later, Alford filed the instant grandparent visitation action. Shortly thereafter, without giving notice to Alford, Katheryn, adopted the child. Barnhill then filed a motion to dismiss, asserting, among other things, that Alford no longer had standing to pursue grandparent visitation since pursuant to O.C.G.A. §19-8-19, the adoption severed all of her legal ties with the child. The trial court denied the motion to dismiss. The Barnhills followed with a motion challenging the constitutionality of portions of the grandparent visitation statute, which the trial court also denied. Ultimately, the court awarded visitation to Alford. The Barnhills appealed.
Affirmed. The trial court did not err by denying Barnhill’s motion to dismiss. Alford had standing to seek visitation under O.C.G.A. §19-7-3(a)(2) because of Hush’s death. The child’s subsequent adoption by Katheryn does not change this. Likewise, O.C.G.A. §19-7-3(b)(2), which prohibits grandparent visitation actions when the child is living with both parents does not apply, even though the now-adopted child is living with both parents. The majority noted that O.C.G.A. 19-7-3(d), not relied upon by the trial court, also permits biological grandparents to pursue visitation rights with their deceased child’s children, even after an adoption by a step-parent. Finally, O.C.G.A. §19-7-3(c)(2), which bars a grandparent visitation action in any year in which another custody action has been filed, does not apply in this case, even though a modification action between Hush and Barnhill was finalized only a few months before Hush’s death and Alford’s petition. Rather, the clock starts running as of the date of the previous custody action was filed, not the date of the final order.
O.C.G.A. §19-7-3(c)(1) authorizes a trial court to grant a family member visitation rights upon a showing of clear and convincing evidence that the child’s health or welfare will be harmed without visitation, and that the visitation is in the child’s best interests. In making this determination, the trial court must consider whether the child lived with, or had an established pattern of visitation with the family member, whether the family member provided support for the child, and any other relevant factor. Inasmuch as the burden of proof is on the family member seeking visitation, this Subsection does not create an unconstitutional presumption in favor of visitation, nor does it unconstitutionally interfere with the parent-child relationship.
The parties, the child’s therapist, experts and the Family Coordinator testified at trial. Alford established that the child lived with her for over four years, and that she supported and cared for the child during that time. In the end, the evidence and testimony supported the trial court’s conclusion that harm would come to the child if Alford is not awarded visitation. Accordingly, the trial court did not abuse its discretion in awarding visitation to Alford.
O.C.G.A. §19-7-3(c)(3), which provides for a rebuttable presumption in favor of visitation with the family member who has a pre-existing relationship with the child, was not implicated or relied upon by the trial court. Accordingly, the Supreme Court did not weigh in on the Barnhills’ constitutional challenges to that Subsection, or to Subsection (c)(5), which provides for a minimum of 24 hours of visitation with a family member.
Justice Bethel concurred specially. He amplified the majority’s and trial court’s concerns that Barnhill’s failure to notify Alford of the adoption until after it was finalized “appears to have been an intentional effort to abuse the judicial system.” He further chastised Barnhill for violating O.C.G.A. §19-9-69(d), which required him to notify Alford and the trial court of the adoption when it was filed. Moreover, Justice Bethel questioned Barnhill’s attorney’s knowledge of and/or complicity with the litigation tactic, which he noted is a possible violation of Rule 8.4(a)(4) of the Georgia Rules of Professional Conduct. Justice Bethel also joined the majority in admonishing the Barnhills for their “disingenuous” argument that the undisclosed adoption caused Alford to lose her standing to pursue her visitation action. Their legal maneuvers, he added, were “unacceptable and flagrantly undermine both the Child’s interests and the integrity of the legal process.” He ended with a plea to the General Assembly to address the issue legislatively.
PRACTICE NOTE: An attorney violates Rule 8.4(a)(4) of the Georgia Rules of Professional Conduct Rule 8.4(a)(4) if he or she “engage(s) in professional conduct involving dishonesty, fraud, deceit or misrepresentation.” Judge Bethel’s suggestion that the attorney may have participated in such conduct is much more than a mere slap on the hand. Custody cases can be so very difficult. Yet, no client is worth putting one’s own integrity, reputation and career on the line. When faced with such challenging issues, reach out to mdg Custody Litigation Consulting 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, Litigation Support for Attorneys and Litigation Support for Clients may be exactly what you need!
Daggy v. Daggy, Case No. A22A1305, December 27, 2022.
The parties have one minor child. Wife filed a petition for divorce seeking joint legal and primary physical custody of the child, child support, alimony and attorney fees. Husband did not file an answer, and did not appear at the trial. The trial court granted the Wife sole legal and physical custody of the child, visitation for Husband, and child support, alimony and attorney fees to Wife. Husband appealed.
Reversed in part, vacated in part and remanded with direction. The trial court’s sole custody award to Wife instead of joint custody to both parties effectively stripped Husband of all decision making authority for their child. Husband had no notice that sole custody was a potential outcome, and he did not appear at trial. Thus, the trial court was limited to the relief requested in Wife’s pleadings. Since the trial court exceeded its authority, the custody determination is reversed. The trial court also erred by not providing a statutory basis for the attorney fees award. Especially when there is more than one statutory basis for a fee award, as in this case, the trial court must provide the statutory basis and the necessary findings for the award. Accordingly, the fee award is vacated, and remanded for trial court to clarify the basis of the award.