In October 2023, the Georgia Court of Appeals released two custody related opinions, and two other opinions relevant to family law. Scroll down for more.
Custody-Related Opinions Released in October 2023:
In the Interest of C.B., et al., children, Case No. A23A0726, Georgia Court of Appeals, October 13, 2023
Facts:
Mother and Father divorced when their children were 2 years old and 4 months old. Mother had primary legal and physical custody of the children. Father was ordered to pay child support, and to produce negative drug tests prior to exercising visitation. Three years later, Mother filed a petition in Juvenile Court to terminate Father’s parental rights since he never submitted to drug testing, never saw or communicated with the children and never paid any child support. After speaking with Father on the telephone, and in accordance with his instructions, the deputy served Father with the petition and summons by leaving a copy with his mother at her residence. However, at the termination hearing, Father asserted that he did not live with his mother, and therefore was not properly served. The court nonetheless moved forward with the hearing, and entered an order terminating Father’s parental rights. Father appealed.
Holding:
Affirmed. The trial court did not err by finding that Father was personally served notoriously by the deputy. O.C.G.A. §9-11-4(e)(7) permits a process server to leave copies of the complaint and summons at the defendant’s usual place of abode. Father’s testimony as to whether he lived with his mother was contradictory, and therefore not credible. Indeed, his communications with the deputy, and his testimony at trial led to a reasonable inference that his mother’s residence was his usual place of abode. Thus, Father was unable to overcome the high burden of traversing the deputy’s return of service.
Moreover, in accordance with O.C.G.A. §15-11-310(a), the court found that the children were dependent due to Father’s lack of proper parental care and control; and that continuing the parent/child relationship will likely cause the children serious physical, mental, moral or emotional harm. Notably, although Father claimed he no longer used drugs, he never submitted to drug testing to prove his claim. That fact, together with Father’s history of homelessness, drug use, and inconsistent employment, and his continued absence from the children’s lives and failure to pay child support even during the course of the litigation, was clear and convincing evidence supporting the juvenile court’s conclusion that the dependency would likely continue. Accordingly, the juvenile court did not abuse its discretion by terminating Father’s parental rights.
Shelley Namdar-Yeganeh v. Cyndi Namdar-Yeganeh et al., and vice versa. Case Nos. A23A0999 and A23A1000, Georgia Court of Appeals, October 26, 2023
Facts:
After the children’s father died, their paternal grandparents sought and obtained visitation rights with 
them in New Mexico. However, because Mother and the children moved to Georgia, the New Mexico court relinquished exclusive continuing jurisdiction. Shortly thereafter, the grandparents registered the New Mexico order in Georgia, and filed a petition to modify the visitation. The Mother moved to dismiss the grandparent’s petition. The court denied the Mother’s motion and ultimately entered an order modifying the visitation. This appeal followed.
Holding:
Grandparents have a right pursuant to O.C.G.A. §19-7-3(b) to file an original action for visitation rights with their grandchildren, or to intervene in an existing action involving the children. Parents, however, have a compelling constitutional right to the care and custody of their children. Accordingly, to prevail in a visitation action over the objection of a fit parent, a grandparent must show clear and convincing evidence that the child’s health or welfare would be harmed if visitation is not granted, and that the visitation is in the child’s best interests. Notably, the statute does not authorize grandparents to initiate an action to modify their visitation. Rather, pursuant to O.C.G.A. §19-7-3(c)(2), only a parent, legal custodian or guardian has the right to initiate an action to modify grandparent visitation rights. Thus, the trial court erred in denying Mother’s motion to dismiss, since there was no authority to entertain the grandparents’ petition.
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Related Family Law Cases Released in October 2023:
Inheritance/Child Born Out of Wedlock
In re Estate of Marvin Mobley, Jr., Case No. A23A0827, Georgia Court of Appeals, October 3, 2023.
O.C.G.A. §53-2-3(2)(A) provides that a child born out of wedlock may inherit from a father who died intestate in certain circumstances, including: evidence of a court order legitimating the child, or otherwise establishing paternity; a sworn statement by the father attesting to the parent-child relationship; the child’s birth certificate signed by the father; or clear and convincing evidence that the child is the father’s child. In addition, the child may petition for DNA testing, which, if paternity is established, creates a rebuttable presumption of kinship.
Declaratory Judgment Action // Military Retirement
Phelps v. Phelps, Case No. A23A0646, Georgia Court of Appeals, October 27, 2023.
O.C.G.A. §9-4-2(a), the State Declaratory Judgment Act, gives superior courts power to declare rights in cases of actual controversy and in civil actions in which the ends of justice require a declaration. In declaratory judgment actions, the trial court should not reconsider the evidence as if it had never been adjudicated. Moreover, the court is not authorized to modify the original judgment. Instead, the court should clarify or construe the plain language of the judgment. If a settlement agreement is involved, the court should apply the usual rules of contract construction to determine the intent of the parties. In doing so, the court should consider the context of the entire agreement when clarifying ambiguities, and only consider parol evidence if context does not clear up the ambiguities. Finally, the law applied in a declaratory judgment action should be the law in force at the time of the original judgment.
This case involves the interpretation of the parties’ 2003 divorce agreement to divide Husband’s military retirement. The Court of Appeals noted that military retirement law was revised in 2016. Thus, the trial court should have considered the previous law when attempting to clarify the 2003 agreement. Additionally, the Court noted that although the trial court’s equitable division of property is generally limited to property accumulated during the marriage, the parties have the right, by agreement, to include post-divorce retirement amounts in their division of property.
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