The Georgia Court of Appeals closed out the year in December 2023 with the release of two custody related opinions.
Custody-Related Opinions Released in December 2023:
Barrett v. Bryan, Case No. A23A1644, Georgia Court of Appeals, December 7, 2023
Bryan (father) and Barrett (mother) both sought primary custody of their 4-year-old daughter. After the trial court awarded interim joint legal custody and temporary primary physical custody to Bryan, Barrett moved for the appointment of a Guardian ad Litem (GAL). Bryan objected. The trial court denied Barrett’s request, stating that he will evaluate the custody issues rather than “pawning off” the issues to a GAL. The judge added that he did not see the need for the parties to spend the money on a GAL. At the final trial, the court awarded primary physical custody to Bryan. Barrett appealed.
Affirmed. Uniform Superior Court Rule 24.9 governs the appointment of a GAL in domestic relations cases. A trial court has discretion as to whether a GAL should be appointed, and is not obligated to do so. In exercising its discretion, the court must consider the best interests of the child. Moreover, as in the instant case, it is not error for the trial court to consider the costs to the parties of appointing a GAL. Accordingly, inasmuch as it is ultimately the trial court’s duty to make the custody determination, it was not error for the judge to evaluate the custody issues himself rather than appointing a GAL.
PRACTICE NOTE : Custody litigation is expensive and the cost of the GAL is often a major consideration. Depending on the issues involved, the court may appoint a GAL to perform a limited scope investigation, limiting the issues and/or the GAL duties, and minimizing the costs. A limited scope investigation is particularly useful in 14-year-old election cases to circumvent the need for the child to sign an affidavit, or appear in court. Contact me now to inquire about my availability to serve as a court-appointed GAL in your custody cases.
In the Interest of R.E.Z.B., a child, Case No. A23A1775, Georgia Court of Appeals, December 12, 2023
When R.E.Z.B. was 12 years old, he arrived in the U.S. from El Salvador unaccompanied by his parents, and was placed in Morales’ (his uncle) custody. After almost 2 years, Morales instituted a private dependency action, with the ultimate goal of obtaining for R.E.Z.B. permanent residency in the U.S. He alleged that R.E.Z.B.’s parents were unable to provide for him, and he provided evidence that reunification efforts were unsuccessful. Additionally, Morales submitted reports on gang violence in El Salvador, and alleged that R.E.Z.B. had been harassed and recruited by them before escaping to the U.S. Adopting most of Morales’ proposed findings and final order, the juvenile court found R.E.Z.B. dependent and awarded Morales temporary custody. However, the court refused to incorporate a finding as to whether it is in R.E.Z.B.’s best interests to be returned to El Salvador. Morales appealed.
The juvenile court’s finding of dependency is affirmed. The court, however, erred by refusing to incorporate findings as to whether it is in R.E.Z.B.’s best interests to return to El Salvador. Under Federal law, immigrant children residing in the United States may seek protection from abuse, neglect and abandonment by qualifying for “Special Immigrant Juvenile” status (SIJ) and applying for permanent residency. USC §1101(a)(27)(J). To qualify for SIJ status, a child must obtain specific findings from a state juvenile court that: 1) the resident alien is under age 21; 2) the child is unmarried; 3) the child is dependent; 4) reunification with one or both parents is not viable due to abuse, neglect, abandonment, or other similar basis; and 5) it is not in the child’s best interest to be returned to the country of nationality or last habitual residence. The juvenile court has a duty to consider and make findings regarding all of the foregoing factors. Accordingly, the case is remanded to the juvenile court with instructions to make appropriate findings.
PRACTICE NOTE: In February 2023, the Court of Appeals released another case involving similar issues. Check out the review of In the Interest of M.J.H., 366 Ga. App. 872 (2023).