In January 2024, the Georgia Court of Appeals released one custody related opinion, and three other opinions relevant to family law. Scroll down for more.
Custody-Related Opinion Released in January 2024:
Beall v. Beall, Case No. A23A1549, Georgia Court of Appeals, January 26, 2024
A few months after the parties adopted a newborn baby, Father began an extramarital affair and moved in with his girlfriend and her three children. During the course of the divorce action, Father began using steroids and human growth hormones, He also became estranged from his family who did not approve of the girlfriend, and who testified about radical changes in his personality. Moreover, Father’s girlfriend attempted suicide during a brief separation from Father. She also posted partially nude photos and sexually explicit language on social media. The parties entered into a temporary consent order giving Mother primary physical custody, and Father limited visitation. Although he agreed that the child would have no contact with his girlfriend, Father repeatedly violated this prohibition, and was not truthful about it when questioned at trial. The court’s final decree awarded sole custody to Mother, and no visitation for Father. This appeal followed.
A trial court has broad discretion in deciding visitation. The court, however, may only deny a divorced parent access to his/her children in exceptional circumstances. Instead, it must first consider supervised or other appropriate visitation arrangements. The focus must be on the child’s needs. Indeed, the parent’s faults, undesirable behaviors or sexual mores are not the primary consideration assuming, as in the instant case, that the child is not exposed to, or adversely affected by such issues. In the instant case, the court could not limit the child’s contact with the girlfriend since there was no evidence that such exposure was harmful to the child. Similarly, although Father’s steroid use, personality changes and loss of family support are concerning, the court did not find that these issues affected his relationship with the child, or that he was unfit. Accordingly, the court abused its discretion by awarding no parenting time to Father.
PRACTICE NOTE: The trial court in this case probably would have benefited greatly from appointing a Guardian ad Litem (GAL). GALs do more than just get to the truth of what is in the best interests of the children in custody disputes. We also provide accountability, keep cases moving along in a positive direction, and, most importantly, we strive to settle our cases. File a motion for the appointment of a GAL in your custody cases! It will be one of the most important things you do for your client.
Call me or e-mail me NOW about serving as the Guardian ad Litem in your custody cases.
Related Family Law Cases Released in January 2024:
Gibson-Wright v. Smith, Case No. A23A1540, Georgia Court of Appeals, January 8, 2024.
O.C.G.A. §16-5-90 defines stalking as following, placing under surveillance or contacting another person without consent, for the purpose of harassing and intimidating that person. The perpetrator must have knowingly and willfully established a pattern of conduct that serves no legitimate purpose, and that causes the victim emotional distress by placing him/her in reasonable fear of his/her safety, or the safety of his/her immediate family. It is not necessary to show that the perpetrator made overt threats of death or bodily injury. Rather, the perpetrator’s ongoing, repetitious conduct against the victim’s wishes may be sufficient to sustain a finding of stalking if the victim is reasonably fearful for his/her safety.
In the Interest of K.M., et al., Children, Case No. A23A1311, Georgia Court of Appeals, January 23, 2024.
The juvenile court, whenever possible, is obligated to preserve the parent and child’s fundamental right to familial relations. Accordingly, the court may sever the custodial relationship, even temporarily, only under compelling circumstances. A child is dependent if s/he is in need of the court’s protection due to abuse or neglect. Parental unfitness is essential to an adjudication of dependency. Indeed, there must be clear and convincing evidence that the child’s dependency resulted from the parent’s intentional or unintentional abusive or neglectful conduct, or the parent’s physical or mental incapability to care for the child. Moreover, there must be evidence of present dependency, as past or potential future dependency alone does not suffice. “Abuse” is defined, in part, as a non-accidental physical injury suffered by the child (or an injury inconsistent with the given explanation) that was caused by the acts or omissions of the responsible adult. Similarly, “neglect” is defined as failure to provide proper parental care, control, education subsistence or supervision for the child, or the abandonment of the child.
In the instant case, there was no evidence that the children were dependent due to abuse or neglect. The parents’ admitted past marijuana use did not support a finding of dependency. Rather, there was no evidence that they were presently using marijuana, that they excessively used it in the past, or that their usage adversely affected the children. Moreover, Mother attended substance abuse counseling upon the case worker’s request. Additionally, there was no evidence that the death of one child, and two other previous injuries reported and investigated by DFCS, were the result of abuse or neglect. Interestingly, and as the Court of Appeals noted, significantly, even the State conceded on appeal that the evidence did not support the juvenile court’s order.
Dependency // Parental Fitness Evaluation
In the Interest of Z.A., et al., Children, Case No. A23A1434, Georgia Court of Appeals, January 24, 2024.
If a child has already been removed from the parent’s custody, the issue in a dependency hearing is whether the child would be dependent if returned to the parents’ care and control as of the date of the hearing. In making this determination, the juvenile court must consider evidence of egregious physical, emotional, sexual, cruel or abusive conduct by the parent toward the child. The court must also consider evidence of physical, mental or emotional neglect of the child. In the instant case, the mother tested positive for marijuana, and she refused to submit to subsequent drug screens, or to complete a parental fitness evaluation. The mother also physically and emotionally abused the children, and was, in fact, out on bond with a ‘no-contact’ provision for a cruelty to children charge involving one child. Accordingly, the juvenile court’s finding of continued dependency was supported by clear and convincing evidence.
O.C.G.A. §15-11-101(e) provides that upon probable cause, the court may order the child’s parent, guardian or legal custodian to undergo a physical, psychological or psychiatric examination. Moreover, as in the instant case, the court may order a party to comply with all recommendations in a parental fitness (or other) evaluation. Finally, alleged bias of the evaluator goes to the weight given to the testimony or evidence, not to its admissibility.