In February 2023, the Georgia appellate courts released eleven opinions relevant to custody and family law. Reviews of the first five opinions released in February (listed below) can be found in Part 1 of the February 2023 Georgia Custody Case-Law Updates. Reviews of the remaining six opinions are below.
Custody-Related Opinions Released in February 2023 – Part 2:
In the Interest of M.J.H., 366 Ga. App. 872 (2023) uary 23, 2023.
M.J.H. was born and raised by his mother and grandparents in Guatemala. He attended school until age 9 or 10, after which he worked to help support the family. M.J.H., however, aspired to continue his education, and he lived in fear of the Guatemalan gangs. So, when he was 12 years old, M.J.H. immigrated to the United States. Upon entering the country, M.J.H. was detained by Border Patrol officials, and released into his uncle’s care in Georgia, where he has lived since 2016. Eventually, M.J.H.’s uncle filed this private dependency action to obtain legal custody of M.J.H. His petition also requested that the court make findings sufficient to enable M.J.H. to apply for Special Immigrant Juvenile (SIJ) status, which if approved, would enable him to apply for permanent residence status.
At trial, M.J.H.’s mother admitted the allegations in the dependency petition, and consented to his uncle retaining custody. M.J.H. testified about his inability to complete his education in Guatemala, and about his fear of the Guatemalan gangs. Evidence was also tendered regarding the violent gang culture in Guatemala. Additionally, the Guardian ad Litem opined that M.J.H.’s mother was unable to provide for M.J.H.’s basic needs, including a proper education and protection from the gangs. She recommended that it is in M.J.H.’s best interests to remain in Georgia in his uncle’s custody. The juvenile court found that M.J.H. was a dependent child and appointed his uncle as his custodian. However, despite the foregoing evidence, the court found that reunification with his mother is viable and in M.J.H.’s best interests, reasoning that “it is the unfortunate reality that gangs are present in this county where he now resides,” This appeal followed.
Judgment vacated and remanded. The evidence was that M.J.H. was fearful of the gangs in Guatemala and that his education was compromised there. The juvenile court, however, concluded that reunification with his mother was in M.J.H.’s best interests in light of the fact that gangs are also present in the community where M.J.H. resides with his uncle. Yet, there was no evidence or testimony regarding such gang activity in M.J.H.’s Georgia home. Thus, the trial court erroneously relied on facts outside of the record in reaching its conclusion.
Federal law provides for SIJ classification to protect abused, neglected and abandoned immigrant children. Qualified children must be unmarried, and under 21 years old. A state juvenile court must also declare the child a dependent, and make specific findings that reunification with the parent(s) is not viable due to abuse, neglect or abandonment, and is not in the child’s best interests. Children who qualify for SIJ status may apply for legal permanent residency in the United States. In the instant case, M.J.H.’s uncle filed the private dependency action to begin this process of obtaining the SIJ status for M.J.H. This was an appropriate means to accomplish SIJ status, as pursuant to O.C.G.A. §15-11-100(4), dependency proceedings are intended to ensure that a child’s health, safety and best interests are of paramount concern.
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Related Family Law Cases Released in February 2023 – Part 2:
Recovery for Wrongful Death
Hamon v. Connell et al., Case No. S22G0409, Supreme Court of Georgia, February 7, 2023.
O.C.G.A. §51-4-2(a) provides that a surviving spouse may file an action for the wrongful death of his/her spouse. The statute provides further that if there is no surviving spouse, the decedent’s children, whether minors or sui juris, may seek recovery for the wrongful death of the parent. There are, however, equitable exceptions to the statute favoring the surviving spouse’s right to recover over the children’s right to recover.
Settlement Offer // Mistake
Miller v. Evans, Case No. A22A1490, Georgia Court of Appeals, February 17, 2023.
This case involves a mistake/typo in an offer of settlement. A party may rescind and cancel an offer already accepted by the opposing party in limited cases. The court will apply a balancing of equities, considering four key factors: 1) whether enforcement of the mistake is unconscionable; 2) whether the mistake related to the substance of the consideration; 3) whether the mistake occurred despite the exercise of ordinary care; and 4) whether the other party has been prejudiced. In addition, to the foregoing, the rescinding party must give prompt notice of the mistake, and of the intent to withdraw the offer. Standing alone, the inability of the opposing party to benefit from an obvious mistake (especially in cases of a windfall) is generally not the type of prejudice that will prevent the erring party to withdraw a unilateral mistake.
Zeh et al. v. Maso et al., Case Nos. A22A1289 and A22A1290, Georgia Court of Appeals, February 24, 2023.
O.C.G.A. §24-7-702 governs the admissibility of an expert witness’ opinion testimony in civil cases. The trial court is the ‘gatekeeper’ of expert testimony. In this role, the court must assess the witness’ qualifications to testify in the area of expertise, as well as the relevancy and reliability of the testimony. Under Subsection (b) of the Code Section, expert testimony is admissible if 1) it is based on sufficient facts or data; 2) it is the product of reliable principles and methods; and 3) if the expert has reliably applied the principles and methods to the actual facts of the case.
Contempt // Inability to Pay
Wright v. Wright, Case No. A22A1586, Georgia Court of Appeals, February 28, 2023.
A financially able party who does not pay court-ordered support, may be found in civil (or criminal) contempt, and incarcerated. The essence of civil contempt is willful disobedience of the order. Inability to pay is a valid defense. Specifically, the party asserting the defense must show that all of his/her financial resources have been exhausted, and that s/he has made a bona fide effort to comply with the order. In the instant case, the ex-Husband was not in willful contempt for non-payment of court-ordered alimony. Rather, he established his inability to pay by showing that his recent release from 20+ years of incarceration, the pandemic, and serious health problems rendered him unable to secure employment. Moreover, he had no assets, and he lived on food stamps, and housing and medical assistance from a community agency. Finally, potential disability payments not yet approved are purely speculative, and therefore cannot be considered.
Enforcement of Settlement // Deceased Party
Lynch et al. v. Lynch et al., Case No. A22A1747, Georgia Court of Appeals, February 28, 2023.
A claim to enforce the terms of a divorce settlement agreement against a deceased party should be brought as a breach of contract action against the deceased’s estate. In the instant case, the settlement agreement provided that the Father/decedent would irrevocably devise specific property to the children of the parties, or the proceeds from the property, if sold. Father/decedent sold the property, and died several years later. His will, however, did not leave any proceeds from the sale to his children, and, in fact disclaimed that any amounts were due to the children under the terms of the settlement agreement. Inasmuch as the Father/decedent’s surviving spouse was not a party to the settlement agreement, she, as an heir to the estate, cannot be held personally liable for amounts the children claim are due to them.
Finally, you can find reviews of the below cases at Part 1 of the February 2023 Georgia Custody/Visitation Case Law Updates.
- Roberts et al., vs. McCoy et al.
- Anderson v. Cribbs
- In the Interest of C.E., Jr., a child
- Brooks v. Brooks
- Chatel v. Carroll