Third Party Determination of Child Custody: Can a person other than the Court determine who has custody of a child? The answer is no!
Consider this case were the parties agreed to Third Party Determination of Child Custody : In the case of Johnson v. Johnson, the parties to a divorce went to trial and incorporated into their settlement, a provision whereby the parenting plan provided that the child’s therapist solely had the authority to determine the termination of supervision of the father’s overnight visitation with the child.
The Supreme Court of Georgia provided that any provision where there is a material change in visitation, and any provision that allows for an automatic change in visitation or custody without the Court first having considered the child’s best interests, will be ruled invalid by the Court.
If there are any provisions in your settlement agreement that allows for the automatic change in visitation or custody, the court found that this provision constitutes an invalid self-executing change of visitation and is not allowed and will not be enforced by the Court. Additionally, if the provision is in your settlement agreement or parenting plan – your divorce decree and/or parenting plan is likely to be ruled invalid.
For more information about this Georgia Supreme Court case see Johnson v. Johnson, S11F1856 (1/09/12).
If you have questions about an uncontested divorce or adding a Third Party Determination of Child Custody provision to your settlement agreement or parenting plan – Contact the Remboldt Law Firm at 404-348-4081 for a FREE phone consultation.
If you are considering an uncontested divorce, you may find the UNCONTESTED DIVORCE WORKSHEET helpful in moving forward with an uncontested divorce.
Modification of Parenting Plan by a Third Party – Can a parenting plan be written where a third party can make a decision to terminate visitation or even the supervision of visitation – (Modification of Parenting Plan by a Third Party)? The answer is NO!
The Supreme Court of Georgia addressed this situation by partially reversing the parties final judgment in the parties’ divorce case, holding that the trial court improperly denied the father’s motion for new trial based on the incorporation of a parenting plan providing that the child’s therapist had the authority to determine the termination of supervision of the father’s overnight visitation with the child. Because the provision was a material change in visitation that allowed for an automatic change of the father’s visitation without judicial scrutiny into the child’s best interests, it constituted an invalid self-executing change of visitation that the trial court should not have included in the judgment and divorce decree.
Modification of Parenting Plan by a Third Party – Remember – only the court can change a parenting plan order and make a determination as to the child’s best interests as it relates to custody and visitation. In an uncontested divorce you should avoid having a third party determine if the parenting plan should change custody and/or visitation from what was already ordered by the Court.
For more information about this ruling see: Johnson v. Johnson S11F1856 (civil case) January 9, 2012 BENHAM, Justice. 12 FCDR 80 (01/13/12).
Modification of Parenting Plan by a Third Party. If you have questions about an uncontested divorce and/or creating a parenting plan that is in compliance with Georgia law – Contact the Remboldt Law Firm at 404-348-4081 for a FREE phone consultation.
If you are considering an uncontested divorce, you may find the UNCONTESTED DIVORCE WORKSHEET helpful in moving forward with an uncontested divorce and creating a Parenting Plan that is compliance with Georgia law. Also information about the Georgia Child Support Calculation can be found here.
Custody vested in Father. The Court of Appeals affirmed the modification of a previous custody award and grant of primary physical custody of the child to the biological father, holding that evidence supported the trial court’s findings that a material change of condition affecting the welfare of the child occurred and the change in custody was in the child’s best interest. The Court held that what began as a temporary custodial arrangement when the mother moved to Oklahoma in 2004, leaving the child in the care and custody of his maternal grandmother in Missouri, and arguably could still be construed as such when the parents entered into a 2006 consent order modifying the father’s visitation rights, evolved into a permanent custodial arrangement by the time the father filed his petition for change of custody in 2009, and the mother’s voluntary surrender of physical custody and control of the child to his grandmother resulted in a material change in condition. Additional evidence supporting the finding of a material change in condition included the grandmother’s limitation of some of the father’s visitation, the exclusion of the father from important medical decisions affecting the child, and the failure to notify the father when the mother executed powers of attorney in loco parentis in favor of the grandmother. The Court also held that the trial court did not abuse its discretion in finding that the award of primary physical custody to the father was in the best interest of the child, as a prima facie right of custody is vested in the non-custodial parent when the custodial parent voluntarily surrenders custody to a third party; a rebuttable presumption provides that it is in the best interest of the child to award custody to a parent rather than a third party; and the father presented evidence that he is a fit and qualified parent to have primary physical custody and will be able to meet the needs of the child in adjusting to a new home.
If you have questions about how child custody or when Custody vested in Father – for more information, contact the Remboldt Law Firm at 404-348-4081 for a free consultation.
Parental Rights Termination and Drugs. Here’s an example of a case where the parental rights were terminated by the Court due to drug use.
The Court of Appeals affirmed the termination of the mother’s parental rights to her 10-month-old daughter, holding that the trial court did not err in finding that the child was deprived, the mother was the cause of the deprivation and the deprivation was likely to continue, where the mother had a 12-year history of drug addiction and repeatedly used methamphetamine while pregnant; neither of the mother’s two other children were in her custody; the mother had multiple felony drug convictions and was in jail after the child’s birth; the mother failed to financially support the child until four weeks before the termination hearing; the mother had five separate residences since the child’s birth; the mother made no attempt whatsoever to visit the child until she filed her motion for visitation when the child was nine months old; and the mother was willing to reconcile with the father, who was also addicted to methamphetamine and had not completed any type of drug treatment. The Court also held that termination was in the child’s best interest, based on the evidence of the mother’s prior drug problems, her failure to support or develop any bond with the child, her willingness to reconcile with the father, and the paternal relatives’ desire to adopt the child.
Parental Rights Termination and Drugs. For more information see the Georgia case: In the Interest of Z.P., A11A2183 (02/24/12)
If you have questions about Parental Rights Termination and Drugs, a divorce settlement agreement, contempt, or if you are considering filing a divorce, please contact the contact the Remboldt Law Firm, LLC at 404-348-4081 for a free phone consultation.
Income Deduction Order Georgia – Income Deduction Orders (State Form) and Income Withholding Orders (Federal form) must be submitted with the Final Orders to the Judge in a divorce in Georgia unless the court issuing the order finds that there is good cause not to require withholding and such a finding must be based on at least a written determination that implementing wage withholding would not be in the best interest of the child, or a written agreement is reached between both parties which provides for an alternative arrangement. O.C.G.A. 19-6-32(a)(1).
The Federal Office of Child Support Enforcement (OCSE) and the Office of Management and Budget (OMB), under 42 U.S.C. 666, have issued an Income Withholding Order (IWO) that is required to be sent to employers with ALL income deduction orders issued on or after May 31, 2012. The consequence of not suing the required IWO form is that the employer must reject the income deduction order and return it to the sender, potentially causing an unnecessary delay.
For resource materials on Income Deduction Order Georgia please see HERE.
Child Custody Litigation – Many of my clients come to my office seeking advice about child custody litigation. The first thing I discuss with my clients is how serious the journey will be – in that it will likely impact their children’s health, happiness, and relationship with both parents. Additionally, never will all the client’s conduct, words, attitudes and relationships be as closely scrutinized as during a custody litigation. Unlike other domestic relations litigation, in custody litigation, the conduct of the parents during the pendency of the litigation, many times determine the outcome of the case. Following is a list of conduct your attorney will discuss with you and likely suggest that you SHOULD NOT engage if you are considering child custody litigation.
Use of drugs
Frequent consumption of alcohol.
Improper romantic or sexual relationships.
Mistreatment of a child.
Interference with a child’s relationship with the other parent.
Failure to exercise all possible visitation or contact with the minor children.
Failure to pay child support or other support as required.
Lie or make misrepresentation under oath.
Additionally, you should assume that the other parent will be / or has been documenting your conduct. It is best, leading up to the litigation, that you should make sure your conduct does not include those conducting on the above list if you are considering child custody litigation.
If you have questions about child custody litigation or are considering your options as it relates to a change of custody of your children, you should seek out a knowledgeable child custody lawyer to help you decide next steps. A lawyer will discuss your objectives and concerns to see if child custody litigation makes sense for you.
For information about a child custody litigation in Georgia, contact the Remboldt Law Firmfor a free consultation at 404-348-4081.
Termination of the Father’s parental rights in Georgia. Here are the facts of the case. The Court of Appeals affirmed the termination of the father’s parental rights in Georgia, 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 in Georgia. 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 in Georgia, 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 mother’s parental rights to her older child, affirmed, as evidence authorized juvenile court to find that mother voluntarily and knowingly consented to termination of her rights; mother claimed that her attorney gave her option of proceeding with termination hearing and risking loss of both children or signing consent for older child, who presumable had special needs, while retaining her rights to younger child for at least six months so that she could continue to work on her case plan, however, no evidence showed that fraudulent representations were made regarding older child’s health condition to induce mother to sign written consent; mother admitted to her attorney that she knew older child had special needs, she declined opportunity to review child’s medical records with her attorney, and she proceeded with executing voluntary written consent, based on her own observations of child’s special needs, rather than awaiting further psychiatric evaluation regarding child’s questionable autism diagnosis; no evidence showed that mother signed consent under duress—any pressure in OCGA § 5-6-35 (a) (12), rejected, since Georgia Supreme Court has ruled that due process does not require state to provide appellant review to civil litigants, even in termination of parental rights cases.
In the Interest of A. B., a child, A11A1281 (09/08/11)
Dismissal of biological mother’s appeal from denial of her motion for new trial following grant of petition to terminate her parental rights, affirmed, as trial court did not abuse its discretion in finding that mother’s failure to timely pursue filing of transcript or seek extension of time for almost one year was unreasonable and inexcusable; although mother argued that dismissal of appeal deprived her of due process because of significance of terminating her parental rights, Court held that need to reach final resolution expeditiously applied in such cases because children need permanence of home and emotional stability and should not be required to linger indefinitely in foster care.
Grant of wife’s petition for temporary family violence protective order against husband pursuant to Family Violence Act, affirmed, as any discrepancy between trial court’s oral pronouncements and written judgement must be resolved in favor of written judgment, and O.C.G.A. § 19-13-4 does not require that family violence protective order include written findings of fact and conclusions of law; record belied husband’s contention that trial court authorized wife’s attorney to decide amount of child support award, as standardized form order contained handwritten language and deletions made by trial court; trial court did not err in concluding that it had no authority to direct clerk of court to withhold transmission of family violence protective order to Georgia Protective Order Registry because language of O.C.G.A. § 19-13-53 (b) required such transmission, without exception, and trial court did not have discretion to convert family violence petition into civil restraining order in parties’ divorce action.