Category Archives: Jurisdiction

Custody Subject Matter Jurisdiction

Custody Subject Matter JurisdictionCustody Subject Matter Jurisdiction.  The Court of Appeals reversed the Georgia trial court’s permanent modification of the initial child custody determination made by a Kansas court and the denial of the mother’s motion to set aside the modification, holding that the Georgia court lacked subject matter jurisdiction under the Uniform Child Custody Jurisdiction and Enforcement Act. Although Georgia satisfied the relevant home state requirements of O.C.G.A. § 19-9-61 (a), Kansas never determined that it no longer had exclusive, continuing jurisdiction and no evidence supported the Georgia court’s finding that the mother no longer resided in Kansas. The Court also held that the trial court did not err in denying the mother’s motion for attorneys’ fees pursuant to O.C.G.A. § 19-9-68, as the Georgia court’s improper invocation of subject matter jurisdiction was due to its own error, not the allegedly unjustifiable conduct of the father; mother was not entitled to attorneys’ fees under O.C.G.A. § 19-9-92 either, as that provision applies only to enforcement proceedings.

Custody Subject Matter Jurisdiction.  For more information about this case see:  Delgado v. Combs, A11A1948 (02/29/12).

Fulton County Daily Report, March 9, 2012.

If you have questions about Custody Subject Matter Jurisdiction, a divorce settlement agreement, contempt, or if you considering filing a divorce, please contact the Remboldt Law Firm, LLC at 404-348-4081 for a free phone consultation.

GA Court vacated Alaska Court custody determination

cropped-Books.jpgGA Court vacated Alaska Court custody determination.   Here are the facts of the case.  The Court of Appeals partially vacated the order modifying an Alaska court’s custody determination, holding that the trial court erred in continuing custody of the children with the mother’s parents based on its finding that the mother failed to prove by clear and convincing evidence that returning custody of the children to her would be in the best interest of the children. Because the case involved a custody dispute between custodial third parties and a noncustodial parent seeking reunification with her children, the appropriate standard of proof was the best interest of the child standard set forth in O.C.G.A. § 19-7-1 (b.1), as narrowly construed in Clark v. Wade, 273 Ga. 587 (2001), such that the mother’s parents, not the mother, had the burden of proving by clear and convincing evidence that the children would suffer either physical harm or significant, long-term emotional harm if they were returned to the mother’s custody. However, the Court affirmed the remaining portions of the order, holding that the trial court was authorized to modify the Alaska court determination pursuant to Part 2 of the Uniform Child Custody Jurisdiction and Enforcement Act, O.C.G.A. § 19-9-40 et. seq., since the plain language of O.C.G.A. § § 19-9-85 and 19-9-86 do not require that a custody determination of another state be registered before it can be modified in accordance with Part 2. Finally, the trial court did not erroneously take jurisdiction over and try a pending Alaska case, where the Georgia court properly assumed jurisdiction pursuant to O.C.G.A. § 19-9-63 to try proceedings filed in the Georgia court seeking to modify the Alaska court custody determination, and the issues raised by the mother’s petition filed in the Alaska court seeking custody of the children were tried in the Georgia court by express or implied agreement of the parties and the court.

For more information about the facts of this case and GA Courts vacated Alaska Courts Custody Determination see:  Lopez v. Olson, A11A1794 (03/02/12)

Fulton County Daily Report, March 16, 2012

If you have questions about a divorce settlement agreement, contempt, or if you considering filing a divorce, please contact the Remboldt Law Firm, LLC at 404-348-4081 for a free phone consultation.

Termination of the father’s parental rights.

shutterstock_282421103Termination of the Father’s parental rights.  Here are the facts of the case.  The Court of Appeals affirmed the termination of the father’s parental rights, holding that the juvenile court properly exercised jurisdiction over the termination proceedings, where the petition was filed by the mother who already had sole physical custody of the child; the termination petition dealt specifically with factors relating to the father’s inability to provide proper care and support for the child such that his parental rights should be terminated; and no evidence showed that the petition was filed in connection with an adoption proceeding. Further, the juvenile court did not abuse its discretion in denying the father’s motion for a continuance, given the father’s delay in requesting a court-appointed attorney and his decision to wait until the day before the hearing to ask for a continuance.

Termination of the Father’s parental rights.  For more information about the facts of this case, see:  In the Interest of A.R.K.L., A11A2038 (03/02/12).

Fulton County Daily Report, March 16, 2012.

If you have questions about the termination of the Father’s parental rights, a divorce settlement agreement, contempt, or if you considering filing a divorce, please contact the Remboldt Law Firm, LLC at 404-348-4081 for a free phone consultation.

GA Court of Appeals found trial court lacked jurisdiction over the father’s petition for change of child custody.

The Court of Appeals reversed the denial of Sherry N. Sumner’s motion to dismiss Marcus C. Batchelor’s petition for change of child custody based on lack of jurisdiction, holding that the trial court erred in finding that venue was proper in Effingham county, since the original divorce order awarded custody of the children to Sumner, Sumner challenged the trial court’s jurisdiction in her responsive pleading, and she presented ample evidence that her residence was in Chatham county.

Sumner v. Batchelor, A11A1522, (02/03/12)

Fulton County Daily Report, February 17, 2012

GA Child Custody, Child Cupport, Modificaiton, Visitation Rights, Jurisdiction, Dismissal

Trial court’s corder entered in post-divorce lititation, AFFIRMED; trial court did not abuse its discretion in finding mother in contempt for taking parties’ 11 year-old son to counseling because trial court’s previous order gave father final decision-making authority for child’s health and medical issues, and father disappoved of therapist to wom mother took child; trial court did not err when, after finding that mother withheld visitation from father, it dismissed contempt, visitation, and custody portions of mother’s petiton and did not permit mother to present evidence on merits of dismissed claims, pursuant to OCGA 19-9-24 (b); because mother filed current petition for modificaiton of child support 11 months after trial court dismissed her earlier petition for modificaiton of child support, trial court did not err in dismissing portion of mother’s peition seeking modificaiton of child support, pursuant to OCGA 19-6-15 (k)(2); trial court did not err as matter of law when it refused to allow guardian ad litem to interview child’s therapist without father’s consent because mother previously consented to entry of modified consent order appointing guardian ad litem and providing that guardian was not authorized to speak with child’s  therapist without permission of both parents; trial court did not abuse its discretion when it ordered mother to pay remainder of fees owed guardian ad litem because mother was ot prevailing party, and no statute required that trial court consider parties’ relative financial circumstances when apportioning shares of guardian’s fees pursuant to consent order ; trial court did not abuse its discretion in declining to apply rule of sequestration to unidentifed woman in courtroom because woman did not testify; trial court did not lack jurisdiction to deny mother’s motion to set aside award of attorneys’ fees, despite fact that mother previously filed notice of appeal from underlaying judgment, because underlying judgment was final, and trial court’s award of attorney’s fees did not supplment, ament, alther, ormodify that judgment; mother’s application for sicretionary review of denial or her motion to set aside award of attorneys’ fees, proper, because where both OCGA 5-6-34 (a) and 5-6-35(a) are involved, application for appeal is required when uderlying subject matter of appeal is listed in 5-6-34(a).

Avren v. Garten, S11A0688 (05/16/2011).

Fulton County Daily Report, May 27, 2011

Father submitted himself to trial court’s personal jurisdcition of Dekalb County, GA

Judgment denying father’s motion to vacate judgment of divorce AFFIRMED, and judgment modifying father’s custody order, AFFIRMED; father’s contention that divorce court lacked jurisdiction based on residency of his children, whom he alleged resided in Ethiopia when divorce was filed and when divorce decreee was issued in 2006, was moot, since trial court entered 2010 custody modificaiton and parenting plan order, it was uncontested that children and their mother resided in Dekalb county then and father submitted himself to trial court’s personal jurisdcition when he filed his cusotdy modificaiton pleading and he appeared for hearing on same; father’s contention that trial court erred in failing to make jurisdictional findings regarding children’s home state in body of 2010 custody modificaiton and parenting plan on basis that Uniform Child Custody Jurisdiciton Act generally requires such findings, rejected, since there is no such authority where, as here, trial court did not decline jurisdiciton on basis of being inconvenient forum or stay matter because of another custody action in foreign jurisdiciton.

Wondium v. Getachew, S11A0647 (05/16/2011)

GA Father In Contempt For Failing To Enroll Son In Henry County School.

Judgement modifying parties’ custody, child support and visitation and ruling that father was in contempt for failing to enroll parties’ son in Henry county school system as agreement incorporated into parties’ final divorce decree required, AFFIRMED; record supported trial court’s conclusion that father willfully failed to enroll his son in Henry county school system as  agreement required, particularly in light of his failure to communicate with child’s mother before moving child out of state and his failure to seek judicial reevaluation of custody based upon his planned move;  father’s contention that trial court ‘ “erred by relying on a facially invalid self-executing custody provision”‘ in parties agreement, REJECTED, as agreement included no such provision; father’s claim that agreement ‘ “effectively restricted him from establishing residence anyway other than Henry County” ‘ and constituted unlawful attempt to retain jurisdiction over child REJECTED, since agreement provided only that judicial reevaluation of custody would be triggered if father moved; issuance of final order modifying custody in separate action mooted father’s claim of error regarding trial court’s ex parte emergency order in contempt action; evidence supported trial court’s finding that father ‘ “fled with the child to an out-of-state undisclosed location and hid the child.  the father intentionally avoided contact with the mother for a significant amount of time;” ‘ record belied defendant’s contention that trial court concluded that defendant’s military assignment prevented him from providing stable home environment for the child.

Roberts v. Kinsey, A10A2122 (03/23/2011)

Fulton County Daily Report:  April 8, 2011

 

GA Jurisdicion and Findings of Fact

Judgment denying father’s motion to vacate judgment of divorce AFFIRMED, and judgment modifying father’s custody order, AFFIRMED; father’s contention that divorce court lacked jurisdiction based on residency of his children, whom he alleged resided in Ethiopia when divorce was filed and when divorce decree was issued in 2006, was moot, since trial court entered 2010 custody modification and parenting plan order, it was uncontested that children and their mother resided in DeKalb county then and father submitted himself to trial court’s personal jurisdiction when he filed his custody modification pleading and he appeared for hearing on same;  father’s contention that trial court erred in failing to make jurisdictional findings regarding children’s home state in body of 2010 custody modification and parenting plan on basis the Uniform Child Custody Jurisdiction Act generally requires such finds, rejected, since there is no such authority where, as here, the trial court did not decline jurisdiction on basis of being inconvenient forum or stay matter because of another custody action in foreign jurisdiction.

Sondium v. Getachew, 11 FCDR 1470

From:  Fulton County Daily Report:  May 27, 2011

Criminal contempt order requiring Rhode Island resident to pay $5K fine and be imprisoned for 200 days for her failure to comply with terms of temporary modification of parental grandparents’ visitation rights to her two children REVERSED.

Criminal contempt order requiring Rhode Island resident to pay $5K fine and be imprisoned for 200 days for her failure to comply with terms of temporary modification of parental grandparents’ visitation rights to her two children REVERSED; trial court had jurisdiction over grandparents’ modification action, since initial custody determination complied with OCGA 19-9-61, children’s father still lived in Georgia, and personal jurisdiction over mother was not necessary in order to address requested modification; trial court lacked personal jurisdiction under Uniform Child Custody Jurisdiction Enforcement Act (UCCJEA) over mother for contempt and personal service of mother outside Georgia was invalid under circumstances;  Court relied on Ashburn v. Baker, 256 Ga. 507 (1986), which held that Georgia courts did not have personal jurisdiciton over non-risident mother, who was served outside Georgia, under either now-repealed UCCJEA or long arm statutue, and found the UCCJEA required same result; UCCJEA specifically addresses continuing jurisdiction of cusotdy issues, but not contempt issues and it did not repeal any existing statutory provisions covering divorce, custody, alimony or child support procedures; mother did not admit personal jurisdiciton when she failed to respond to discovery served with complaint, since return of service only showed that she was served with summons and complaint, not discovery; contempt order was not enforceable in Rhode Island pursuant to UCCJEA, since applicable provisions referred to custody determinations and did not includ contempt orders.

Daniels v. Barnes,  A07A1719 (03/04/08), 08 FCDR 795

Fulton County Daily Report, 03/21/2008

Denial of appellant’s motion to dismiss appellee’s complaint to record and modify Alabama child support order, REVERSED in GA.

Denial of appellant’s motion to dismiss appellee’s complaint to record and modify Alabama child support order, REVERSED; trial court erred by finding that appellant was Georgia resident for these purposes and also erred by awarding attorneys’ fees to appellee on modification action; trial court erred in ruling that appellant resides in Georgia, since there was extensive evidence that appellant continues to consider Alabama his home and he intends to remain there.

Kean v. Marshall, A08A0828 (11/10/08), 08 FCDR 3730

Fulton County Daily Report, 12/05/2008.