In February 2023, the Georgia appellate courts released 11 opinions relevant to custody and family law. Reviews of the first five cases are below. Scroll down for more. The remaining cases (listed below) are reviewed in Part 2 of the February 2023 case law updates.
Custody-Related Opinions Released in February 2023 – Part 1:
Roberts et al. v. McCoy et al., Case No. A22A1217, Georgia Court of Appeals, February 1, 2023
Facts:
The minor child at issue is the daughter of McCoy (Mother) and Kemp (Father). The Roberts, McCoy’s cousins, provided care for the minor child during the first 18 months of her life. McCoy also entered into an agreement with the Roberts granting the latter temporary guardianship of the child. She, however, testified that her intent was for the arrangement to be temporary, not permanent. Less than a year later, a court awarded McCoy and Kemp joint custody, and the child returned to their care. Thereafter, the Roberts continued to provide care for the child only during times when Kemp forfeited part of his parenting time to them. The Roberts filed the instant action pursuant to O.C.G.A. §19-7-3.1, seeking to be adjudicated as equitable caregivers for the child. However, the trial court ruled that they lacked standing to pursue equitable caregiver status. The Roberts appealed.
Holding:
Affirmed. The evidence supported the trial court’s conclusions. Specifically, the Roberts were unable to show that they had fully and completely taken on a permanent parenting role for the child. Additionally, the Roberts did not establish that their relationship with the child is fostered or supported by the parents. Accordingly, the trial court did not err by concluding that the Roberts did not have standing to be adjudicated as equitable caregivers.
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Anderson v. Cribbs, Case No. A22A1225, Georgia Court of Appeals, February 14, 2023
Facts:
Anderson (Mother) and Cribbs (Father) are the parents of a child born out of wedlock. Cribbs
petitioned to legitimate the child almost six years later. Prior to the temporary hearing, Cribbs tested positive for marijuana twice, and missed two scheduled drug tests. The trial court granted the legitimation, and awarded temporary joint custody to both parties with primary custody with Anderson. The court conditioned an increase in Cribbs’ parenting time on him producing a negative marijuana drug screen. Cribbs produced four negative drug screens. During the final trial, Anderson requested Cribbs to submit to another drug test. He denied smoking marijuana, and agreed to be tested. The trial court, however, did not order him to do so. The trial court then entered a final order granting joint physical custody to the parties with a “2-2-5-5” parenting time schedule, and denying Anderson’s requests for retroactive and future child support. Anderson appealed.
Holding:
A trial court may consider any relevant factor when considering a child’s best interests, including a parent’s substance abuse. The record shows that Cribbs denied using marijuana in response to the judge’s query. His testimony, and the four negative tests after the temporary hearing, is the only evidence regarding his drug use. Anderson introduced nothing refuting that evidence. Thus, the trial court did not err by not requiring Cribbs to be tested. Moreover, the trial court did not err by ordering the “2-2-5-5” parenting time schedule as the evidence was that it is in the child’s best interest to have both parents involved in her life. Additionally, the parties live within close proximity of one another, and the child’s school would not change. Finally, the schedule allows the parties to have alternating weekends with the child, and to more equally share the parenting and school responsibilities.
The trial court also did not err by not awarding retroactive or future child support to Anderson. Rather, the court properly made written findings of the parties’ respective monthly gross incomes and determined the presumptive amount of child support. Then, in accordance with O.C.G.A. §19-6-15(i)(2)(K)(i) the court deviated from the presumptive child support amount since the parties’ parenting times are essentially equal. In doing so, the trial court found that the parents each pay for the child’s expenses when the child is in his/her respective custody, and that the equal custody arrangement is in the child’s best interests. Moreover, the trial court complied with statutory requirements by explaining in Schedule E of the Child Support Worksheets how the stated presumptive amount is unjust or inappropriate, given the parents’ relative abilities to provide support, and how the deviation serves the best interests of the child. Likewise, the trial court did not abuse its discretion by also applying the parenting time deviation retroactively. And, in any case, the court did not err in denying retroactive child support because Anderson presented no evidence of the expenses for which Cribbs would be responsible.
NOTE: The Court of Appeals acknowledged that the “2-2-5-5” parenting time schedule has not been officially recognized or adopted in Georgia courts. Citing case law from other states, the Court described the schedule as one in which the child lives with the mother for two days, the father for two days, then the mother for five days and the father for five days, resulting in approximately equal parenting time, with alternating weekends. The Court, however, warned trial courts that the success of the “2-2-5-5” schedule depends on several factors, including close proximity of the parents’ residences; the child’s strong bond with each parent; the parents’ effective parenting; and the parents’ ability to communicate without hostility.
PRACTICE NOTE: The Court of Appeals chastised Anderson for misrepresenting facts in the record. The Court noted that this, of course, can affect its fair consideration of the issues. However, the Court warned counsel that such misrepresentations may also subject them to sanctions.
Related Family Law Cases Released in February 2023 – Part 1:
Dependency
In the Interest of C.E., Jr., a child, Case No. A22A1237, Georgia Court of Appeals, February 2, 2023.
A juvenile court must hold a preliminary protective hearing to determine whether there is probable cause that a child is dependent, and in need of protective custody. A dependent child is one in need of the court’s protection because of the parent’s neglect, and failure to provide proper care and control. The juvenile court may consider any relevant evidence, including hearsay, in making a dependency determination. The court may also consider evidence of past neglect if there is current evidence of parental unfitness and present dependency. Moreover, the court can consider evidence of educational neglect, lack of supervision, and lack of stable housing. Finally, the court may consider facts not specifically asserted in the petition if the parent had previous notice and the opportunity to present evidence.
A reunification case plan should have time-limited goals with activities designed to ensure the child’s safe return to his/her home. A parent’s refusal to cooperate with the plan hampers the juvenile court’s ability to assess the parent’s parental fitness and ability to care for and supervise the child. Ultimately, the juvenile court is required to make a disposition that best protects and serves the physical, mental and moral welfare of the child. Thus, the court is not bound by recommended dispositions, or a party’s stipulations. Finally, discrepancies between a court’s oral pronouncements and the subsequent written order should be resolved in favor of the written order.
Arbitration // Vacating Award
Brooks v. Brooks, Case No. A22A1377, Georgia Court of Appeals, February 6, 2023.
Arbitration is a matter of contract. Thus, a court cannot order a party to arbitrate without consent. Five grounds exist to vacate an arbitration award. Corruption, fraud or misconduct of a party, evidence of the arbitrator’s partiality, and failure to properly follow procedure may be bases to vacate. The arbitrator’s manifest disregard for the law, or overstepping of authority may also be causes to vacate the award. To show a manifest disregard of the law, it must be evident that the arbitrator knew the law, but deliberately ignored it. The arbitrator oversteps authority by addressing issues not before him/her. If none of the foregoing reasons to vacate exist, the trial court is bound to confirm the arbitration award. The court cannot inquire into the merits of the controversy or the sufficiency of the evidence. Finally, in some circumstances an arbitrator may award attorney fees pursuant to O.C.G.A. §13-6-11.
Ambiguous Agreements
Chatel v. Carroll, Case No. A22A1336, Georgia Court of Appeals, February 6, 2023.
A trial court has broad discretion to enforce the letter and spirit of a divorce decree, but must do so without modifying the judgment being enforced. In the instant case, the parties’ agreement can have two interpretations. Thus, the trial court must look to parole evidence to determine the parties’ intent, and their respective understandings of the settlement provisions. Their mutual understanding and shared interpretation influences this determination, and in most cases must be held to be the true meaning. Finally, an alleged failure to comply with an ambiguous provision of an agreement cannot constitute a willful violation of the agreement.
Finally, reviews of the below cases can be found in Part 2 of the February 2023 Georgia Custody/Family Law Case Updates:
- Hamon v. Connell, et al
- In the Interest of M.J.H., a child
- Zeh et al, v. Maso et al.
- Miller v. Evans
- Lynch v. Lynch
- Wright v. Wright
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