In May 2023, the Georgia Court of Appeals released two custody related opinions, and five other opinions relevant to family law. Scroll down for more.
Custody-Related Opinions Released in May 2023:
In the Interest of B.L., et al. children, Case No. A23A0008, Georgia Court of Appeals, May 24, 2023
Facts:
The parents of twin boys born in 2015 were never married. In 2020, Father legitimated the children and the parties were awarded joint custody with equal parenting time. About one year later, Father sought and obtained emergency custody, alleging that Mother’s boyfriend sexually abused one of the children. Shortly thereafter, Father filed for permanent custody alleging, among other things, that Mother engaged in prostitution and drug use. Mother counterclaimed, alleging that Father made factually baseless allegations and harassed her in an attempt to obtain custody of the children. The trial court found that Father lacked credibility because he coached the child regarding the sexual abuse allegations, and he jeopardized the police investigations into the matter. These actions, the court concluded, constituted a material change in circumstances. Thus, the court did not accept the guardian ad litem’s recommendation, and instead awarded primary physical custody of the children to Mother. Father appealed.
Holding:
Affirmed. Credibility is a question for the trial court to resolve. In the instant case, the trial court’s finding was affirmed since the evidence supports it. The court also did not abuse its discretion by refusing to allow Father to testify to hearsay statements he testified to at a previous hearing. Rather, the out-of-court statements were inadmissible because the declarants were not available at trial, were not subject to cross-examination, and the statements did not fall within the prior consistent statement exclusion to the hearsay rule. Nonetheless, had Father been the declarant, the statements still would have been inadmissible since the exception only applies to prior consistent statements made before a declarant has a motive to fabricate. Finally, the court did not err by refusing to allow Father to play a recording since he did not lay a proper foundation to authenticate the accuracy or completeness of the recording.
Finally, the trial court was not required to follow the Guardian ad Litem’s recommendation. Instead, the trial court did not abuse its discretion by concluding that Father’s coaching of the child was a material change in circumstances affecting the children’s welfare since Mother’s parenting time was reduced during the investigation. Furthermore, the trial court was did not abuse its discretion by concluding that awarding the Mother primary physical custody was in the children’s best interests.
PRACTICE NOTE: In this case, the Guardian ad Litem reported that both parties engaged in “troubling” behaviors. Their relationship was, in fact, acrimonious from the beginning. 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. It can be even more challenging to keep clients from reacting negatively to the animosity generated by the opposing party, and to guide them instead toward moving forward in the best interests of their children with integrity, positivity and emotional strength. 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!
White v. Fana, Case No. A23A0283, Georgia Court of Appeals, May 31, 2023
Facts:
When the parties divorced, they shared joint legal custody of their 2-year-old daughter, with Fana having primary physical custody. Fana also had tie-breaking authority over all major decisions, except religion, over which White had authority. Three years later, Fana petitioned for an emergency change of custody and visitation, alleging that White showered in the nude with their daughter in an outdoor shower, and took nude pictures of her. White admitted to the allegations. The evidence also indicated that he drove with the child after smoking marjuana, he did not use a proper car seat, and he allowed the child to stand with her head outside of the sunroof while he drove. Following a bench trial, the court awarded Fana primary physical and legal custody of the child with tie-breaking authority in all areas. The court further ordered that White’s visitation be supervised, and subject to being suspended depending on his submission to regular drug testing. Finally, the court ordered White to remove his outdoor shower. White appealed.
Holding:
Affirmed in part, vacated in part and remanded. A trial court’s broad discretion in making custody and visitation decisions will not be disturbed on appeal unless there is a clear abuse of discretion. If any evidence supports the court’s findings, it will be upheld on appeal. In the instant case, the evidence supported the court’s rulings since White admitted to showering with his daughter, even after being ordered not to do so, and he admitted to taking the nude pictures and driving with the child without a proper car seat, and after smoking marijuana. Moreover, ordering White to remove his outdoor shower did not violate his constitutional rights. Rather, the narrowly tailored condition was justified because White continued to shower with his daughter even after being ordered not to do so. Indeed, when awarding visitation rights, a trial court is authorized to impose such restrictions as are warranted by the evidence.
The final order, however, contained the following impermissible provisions requiring that White’s visitation be conditioned upon his submission to regular drug testing: “Should any of the results be positive or if the Father fails to comply with the terms of testing, or if the Mother fails to receive the tests results as required herein[,] no supervised visitation will occur until Father produces a negative drug/alcohol screen.” In addition, the order provided that “[f]ailure by the Father to adhere to the deadlines, requirements, and/or drug/alcohol screening provisions . . . shall result in forfeiture of Father’s visitation until he complies with all [provisions].” Inasmuch as these provisions automatically trigger the suspension of White’s visitation without court oversight or any regard to the circumstances existing in the child’s life at the time, they are impermissible self-executing provisions. Thus, this portion of the order is remanded for reconsideration by the trial court.
Related Family Law Cases Released in May 2023:
Overpayment of Child Support // Motion to Reconsider
Colclough v. Georgia Department of Human Services et al., Case No. A23A0721, Georgia Court of Appeals, May 2, 2023.
The general rule is that a parent is not entitled to a credit for voluntary overpayments of child support, unless the receiving parent agrees. Thus, overpayments of child support may be applied to appellant’s arrearages. However, in the instant case, on remand, the trial court must consider whether the overpayments may also be applied to future child support.
O.C.G.A. §9-11-60(b) authorizes a trial court to revise, correct, revoke, modify or vacate a judgment rendered within the same term of court. However, since pleadings, motions and orders are construed by substance and function, and not by nomenclature, under limited circumstances, a motion to reconsider filed outside of the term of court may be construed as a motion to set aside under O.C.G.A. §9-11-60(d). In that event, the movant must show either (1) lack of personal or subject matter jurisdiction; (2) fraud, accident or mistake/acts of the adverse party unmixed with the movant’s negligence/fault; or (3) a non-amendable defect appearing on the face of the record or pleadings. Appellant has the burden of showing that the trial court abused its discretion by issuing a ruling contrary to the evidence or the law. In the instant case, Appellant cannot meet that burden because there was no transcript of the proceedings.
Stalking
James v. Farley, Case No. A23A0186, Georgia Court of Appeals, May 9, 2023.
Within 30 days after the filing of a stalking petition pursuant to O.C.G.A. §16-5-90 et seq., the trial court must hold a hearing at which the petitioner must prove the allegations by a preponderance of the evidence. The trial court may extend the time for the hearing upon a finding that the defendant is avoiding service of the petition. Otherwise, unless the parties agree to extend the time for the hearing, the petition must be dismissed.
Dependency
In the Interest of K.R., a child, Case No. A23A0570, Georgia Court of Appeals, May 16, 2023.
In dependency actions, the trial court must protect a child’s welfare while preserving the parents’ and child’s fundamental and constitutional right to familial relations. Although parental unfitness is essential to support a finding of dependency, it is not required if the child remains in the custody of the parent at issue. Indeed, even if a child is adjudicated as dependent, the juvenile court cannot remove the child from the parent absent clear and convincing evidence that the dependency was the result of parental unfitness. Parental unfitness is intentional or unintentional misconduct that results in abuse or neglect.
O.C.G.A. §15-11-2(22) defines a dependent child as one in need of the court’s protection because of abuse or neglect. Physical abuse, as defined by O.C.G.A. §15-11-2(2)(A) is an injury suffered by the child because of the acts or omissions of the responsible person, that is nonaccidental or inconsistent with the given explanation given for it. Emotional abuse, pursuant to O.C.G.A. §15-11-2(30), refers to the responsible person’s acts or omissions that cause mental injury to the child’s intellectual or psychological injury. Reasonable and non-excessive corporal punishment is constitutionally protected discipline, and is not considered abuse. Finally, under O.C.G.A. §15-11-2(48), neglect is a failure to provide proper parental care, control, subsistence or education for the child, a failure to adequately supervise the child, or abandonment of the child.
Dependency
In the Interest of B.A., a child, Case No. A23A0585, Georgia Court of Appeals, May 24, 2023.
The party bringing a dependency petition carries the burden of proof, not the parent from whom custody may be removed. The juvenile court may take a child into protective custody upon clear and convincing evidence that the child is a dependent child. In making a dependency determination, the juvenile court may consider past conduct and potential future dependency, but there must also be evidence of present dependency.
Requests for Admissions
LM Insurance Corporation v. London, Case No. A23A0065, Georgia Court of Appeals, May 31, 2023.
If a party fails to timely respond to requests for admissions, the matter is deemed admitted and conclusively established unless the court allows withdrawal or amendment of the admission. O.C.G.A. §9-11-36. Moreover, evidence contradicting an admission is inadmissible at trial.
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