In June 2023, the Georgia Court of Appeals released sixteen opinions relevant to custody and family law. Reviews of the first eight opinions released in June (listed below) can be found in Part 1 of the June 2023 Georgia Custody Case-Law Updates. Reviews of the remaining eight opinions are below.
Custody-Related Opinions Released in June 2023 – Part 2:
Herzler v. Herzler, Case No. A23A0274, Georgia Court of Appeals, June 21, 2023.
The parties shared custody of their 7 year old daughter. During one of her weekend visits with Father, he consumed alcoholic beverages and started stumbling and slurring his words. Scared because of the way he was acting, the daughter called Mother to come over. When Mother arrived, she spoke with Father from the hallway of the apartment building as he stood in the open doorway to his apartment. Eventually, Mother began videotaping their exchange with her phone. She did not tell Father she was recording the exchange, nor did she obtain his permission. She, however, did not try to conceal the phone, he saw her recording him, and he did not ask her to stop. Mother filed a petition to modify custody. Father filed an invasion of privacy action. The trial court granted Mother’s motion for summary judgment, and denied all relief to Father. Father appealed.
Affirmed. Intrusion upon seclusion, a form of the common law tort of invasion of privacy, requires proof of an unreasonable and offensive intrusion into a person’s private concerns. In the instant case, the trial court did not err in holding that Mother’s isolated and overt videotaping of Father in the doorway of his home was not egregious, especially in light of her interest in protecting her daughter’s welfare.
Williams v. Phillips, Case No. A23A0302, Georgia Court of Appeals, June 26, 2023.
The minor child was born out of wedlock. Williams (Father) and Phillips (maternal grandmother) helped care for him until Williams moved to Texas. Shortly thereafter, DFCS removed the child from Mother, and placed him in Phillips’ custody, where he has lived since. Williams legitimated the child, and sought custody. He visited with the child in Georgia before the pandemic, but during the pandemic, they only visited virtually a few times each month. Williams married and lived in a community with adequate medical, mental health and educational facilities. He was behind in child support, but he maintained steady employment with good income, which was being garnished to pay the arrearage. Finding that there was clear and convincing evidence that the child would suffer long-term emotional harm if removed from Phillips’ custody, the trial court awarded permanent legal and physical custody of the child to Phillips, with visitation for Williams. Williams appealed.
Reversed and remanded. Parents have a fundamental right to the care and custody of their children, which should be infringed upon only in compelling circumstances. Thus, in custody disputes between a parent and a third-party relative, there is a rebuttable presumption that it is in the child’s best interest to award custody to the parent. The presumption may be overcome by clear and convincing evidence that parental custody would cause either physical, or significant, long-term emotional harm to the child.
In the instant case, Phillips was the child’s primary caretaker for most of his life and the child had a strong bond with her. Moreover, Williams’ contact with the child was limited, primarily because of the pandemic. However, there was no evidence that he was abusive or unfit to care for the child, or that his home and community life were unsuitable. Furthermore, despite the child support arrearage, the trial court did not find that Williams would be unable to care for the child. Accordingly, since there was no evidence that awarding custody to Williams would cause physical or significant long-term emotional harm to the child, the presumption in favor of parental custody was not rebutted. Indeed, though changing a child’s home may cause stress and discomfort for the child, it may nonetheless be warranted, as in the instant case, to reunify the child with his parent.
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Gelin v. Welch, Case No. A23A0339, Georgia Court of Appeals, June 26, 2023.
Gelin (Mother) and Welch (Father) both sought a modification of custody of their minor child. At the beginning of the final trial, Gelin’s attorney requested that the trial court make findings of fact and conclusions of law. The trial court issued a lengthy final order, including findings, and concluding that joint legal custody with Welch having primary physical custody was in the child’s best interest. Gelin appealed, challenging the trial court’s findings of fact and conclusions of law, as well as the court’s findings regarding a material change in conditions.
Vacated and remanded. O.C.G.A. §19-9-3(a)(8) provides that the trial court shall provide the findings of fact relied upon in making its custody decision, and the reasons for awarding custody in the manner that it did. Similarly, O.C.G.A. §9-11-52(a) requires the court to make findings of fact and conclusions of law if timely requested by either party. Reciting the evidence and testimony does not satisfy this requirement. In the instant case, the trial court’s findings and conclusions were inadequate. Some findings were properly stated, but others were mere re-statements of the testimony. And, notably, the trial court did not identify a material change in condition warranting the modification, nor did it find that the change affected the child’s welfare. Finally, the trial court’s conclusions of law was just a statement of the custody decision, with no explanation of the process by which it was reached, or the facts supporting the decision.
Related Family Law Cases Released in June 2023 – Part 2:
Breach of Promise to Marry // Fraud in the Inducement
Moore v. Humble, and vice versa, Case Nos. A23A0204 and A23A0205, Georgia Court of Appeals, June 21, 2023.
To prevail in an action for breach of promise to marry, there must be an actual promise to marry and acceptance of the promise. A condition precedent to the promise, such as entering into a pre-nuptial agreement, must be performed before the promise becomes enforceable. Notably, the Court of Appeals questioned whether breach of promise to marry should remain as a viable cause of action in Georgia since it has outlasted its intended objective. In contrast, a fraud in the inducement claim requires proof that the defendant not only breached the promise to marry, but also did not intend to fulfill the promise when it was made. To establish fraud, one must establish 1) a false representation; 2) scienter; 3) intent to induce the plaintiff to act or refrain from acting; 4) justifiable reliance by the plaintiff; and 6) damages to plaintiff.
Dependency // Findings of Fact // Continuances
In the Interest of B.R., a child, Case Nos. A23A0194 and A23A0356, Georgia Court of Appeals, June 26, 2023.
A dependency order should include findings of fact demonstrating clear and convincing evidence of present dependency which resulted from the parent’s unfitness. Consequently, if the order fails to include findings of parental unfitness, it must be vacated and remanded so the juvenile court can make appropriate findings. Orders following periodic review hearings should also contain findings of fact explaining, among other things, why the child continues to be dependent. Yet, after a permanency plan hearing, the juvenile court is not required to make a finding of continued dependency. Rather, the court must make specific findings regarding efforts to achieve permanency for the child, and the date by which the dependent child will likely be returned home, placed for adoption, or placed in a permanent guardianship.
O.C.G.A. §15-11-181(a) provides that a dependency petition may be dismissed if the initial adjudication is not completed within 60 days from the time the child is taken into protective custody. After that first hearing, upon request from the parent’s attorney, the juvenile court may continue other hearings, provided that it is not contrary to the child’s best interests. Continuances should only be granted for good cause, and only for the necessary period of time. Finally, O.C.G.A. §15-11-230(f) provides that at permanency plan hearings, the juvenile court may consider any evidence that it finds to be relevant, reliable and necessary, including hearsay.
Huber v. State, Case No. A230072, Georgia Court of Appeals, June 27, 2023.
A person who violates a temporary or permanent restraining or protective order by following, surveilling or contacting the protected party without consent for the purpose of harassing and intimidating the latter, has committed aggravated stalking. A temporary restraining order issued in a divorce action granting sole and exclusive use of the marital home to the protected party may be the basis for an aggravated stalking violation even though the marital home is the violator’s residence. Moreover, a single violation of a protective order may suffice for a charge of aggravated stalking if the violation is part of a pattern of harassing and intimidating behavior. In making this determination, the trier of fact may consider a number of factors, including the prior history of between the parties.
In the Interest of K.B., et al., children, Case No. A23A0355, Georgia Court of Appeals, June 28, 2023.
A juvenile court may place a child in protective custody if the evidence is clear and convincing that the child is dependent. O.C.G.A. §15-11-2(22)(A) defines a dependent child as one who has been neglected, and is in need of the court’s protection. Neglect is a failure to provide proper parental care or control, subsistence, education or other control necessary for a child’s physical, mental or emotional health or morals. A parent’s failure or refusal, without justifiable cause, to comply with a court-ordered reunification plan is a proper consideration for a dependency determination. The juvenile court may also consider a parent’s lack of stable employment and income.
Green et al. v. Pinnex et al., Case No. A23A0547, Georgia Court of Appeals, June 28, 2023.
HIPPA laws are intended to ensure the integrity and confidentiality of medical records against unauthorized use or disclosure. However, a party involved in litigation waives all rights to that privacy if that party places the relevant medical records in issue.
Finally, you can find reviews of the below cases at Part 1 of the June 2023 Georgia Custody/Visitation Case Law Updates.
- Golias v. Boyce
- Williams v. Silvers
- Finch v. Walden
- Georgia Pain and Wellness Center, LLC v. Hatchett
- Evans v. Jackson
- Defense Products and Services Group, Inc. et al. v. Kinney, et al.
- Emile Blau v. Stacia Horn Blau
- Stonewall v. Stonewall