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.
The Supreme Court reversed the grant of the husband’s motion to set aside the order awarding legal and physical custody of the children to the wife, eliminating the husband’s visitation rights, holding the husband in contempt for failure to pay child support, and increasing the husband’s child support obligations. The Court held that it retained jurisdiction to review the set aside order, notwithstanding the general rule requiring parties to utilize the interlocutory appeal procedures of O.C.G.A. § 5-6-34 (b), since the instant case presented a child custody matter subject to direct appeal pursuant to O.C.G.A. § 5-6-34 (a) (11). Further, the trial court erred in granting the husband’s motion to set aside, since trial counsel’s failure to include the husband’s correct address on her motion to withdraw was an insufficient ground to set aside the judgment under O.C.G.A. § 9-11-60 (d) (2).
The Court of Appeals reversed the denial of Bessie Hudgins’ petition for grandparents’ visitation rights as to her youngest grandchild, and remanded the case, holding that the trial court erred in finding that Echols v. Smith, 207 Ga. App. 317 (1993), and Campbell v. Holcomb, 193 Ga. App. 474 (1989), controlled this case, since the Georgia Assembly amended O.C.G.A. § 19-7-3 (b) several months after Echols to provide that a grandparent may intervene and petition for visitation following a minor grandchild’s adoption by either a blood relative or a step-parent, as occurred in this case. The Court also held that the stepfather’s adoption of the minor child, which made him the legal parent under O.C.G.A. § 19-8-19 (a) (2), did not automatically preclude Hudgins’ from seeking visitation rights, even though § 19-7-3 (b) provides that a grandparent’s original action for visitation is not authorized where the minor child’s parents are not separated and the child is living with both parents. The Court cited the recent case of Kunz v. Bailey, S11G0867 (01/09/12), 12 FCDR 79 (01/13/12), and held that the trial court erred in dismissing Hudgins’ petition, without making additional findings concerning whether the minor child’s mother and the adoptive step-father were separated and whether the child was living with both of them.
The Supreme Court partially reversed the 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.
Johnson v. Johnson, S11F1856 (1/09/12)
Fulton County Daily Report, January 13, 2012
The Supreme Court affirmed the judgment of the Court of Appeals in Bailey v. Kunz, 307 Ga. App. 710, (2011), in which the Court of Appeals reversed the denial of Carrie Jean and Douglas Bailey’s motion to dismiss Robert and Royce Kunz’s petition for grandparent visitation of the Baileys’ child, who was conceived with the Kunzes’ son but later adopted by Douglas Bailey. The Supreme Court held that, pursuant to O.C.G.A. § 19-7-3 (b), grandparents can seek court-sanctioned visitation rights to their grandchild in an original action, as opposed to intervention in a custody action, only where the parents are separated or the child is not living with both parents, and the statute does not distinguish between classes of parents such as natural, adoptive or a combination thereof. Accordingly, the Court held that as a matter of law Douglas Bailey became the child’s parent when he adopted her in 2006 and the child became a stranger to her biological father and his relatives, including the Kunzes; Douglas Bailey was the child’s parent when the Kunzes filed their original visitation action; and the Kunzes had no basis for filing that action because the child was living with both her parents, the Baileys, at that time.
Kunz v. Bailey, S11G0867
S11G0867 (civil case)
January 9, 2012
BENHAM, Justice. 12 FCDR 79 (01/13/12)
Order terminating children’s father’s parental rights, affirmed, as children were deprived, father was unable to provide proper care for children, deprivation was likely to continue and termination was in children’s best interest; after being granted unsupervised visitation with children, father beat one child with belt on child’s buttocks, legs and thighs resulting in child’s hospitalization, father was arrested for child cruelty, and when asked about incident by juvenile court, he exercised Fifth Amendment rights; father had cognitive problems that affected his ability to parent and to implement skills learned in parenting classes and counseling, he had history of anger management problems, engaged in angry outburst in telephone call with evaluating psychologist, admitted to physically disciplining one child in connection with toilet training and displayed anger in regards to one child’s toilet training.
Order modifying terms of appellant’s visitation rights, affirmed, as custody evaluation was proper in this case though the case originally involved visitation; parties were divorced and consented to joint legal and physical custody of children; appellee filed petition seeking to modify terms of appellant’s visitation; custody evaluator was assigned to case, and her findings were not to be distributed except with court’s permission; appellant called expert witness who admitted to having copy of custody evaluator’s report; trial court granted appellee’s petition to modify appellant’s visitation; trial court did not err in declining to declare a mistrial after guardian ad litem advised court in chambers about statements made by one child, while appellant was not there, since his attorney was present and made no objection at the time, attorney waited until guardian placed evidence on record in matter before objecting, guardian did not introduce unreported evidence in chambers, and appellant failed to support argument that guardian’s statements so prejudiced court that it could not have ruled properly; prohibiting appellant’s expert from testifying about the report did not violate appellant’s due process rights; expert’s Fourth Amendment right to be free from unreasonable search and seizure was not violated; appellant had no standing to bring Fourth Amendment claim on behalf of expert, and expert consented to the court’s request to view file which contained unauthorized report; appellant properly held in contempt of court for allowing his expert to review the custody evaluator’s report; no error in denying appellant’s motion in limine to exclude from record portions of evaluator’s report that contained the children’s statements; to degree any statements could be considered hearsay, the courts have presumed to have disregarded it.
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).
Order lifting certain restrictions on visitation rights of mother AFFIRMED, as OCGA 19-9-3(b) authorized trial court to modify visitation rights during contempt proceeding; trial court did not abuse its discretion in modifying terms of final judgment to allow mother to resume unsupervised visitation because no evidence showed that mother was present danger to children as she testified that since her visitation rights have been restricted based on her failure to demonstrate that someone had directly witnessed her give urine sample for certain test, she had been seeing physician specializing in addiction medicine and had provided him with urine samples for testing, and no evidence showed that she actually tested positive for drugs or alcohol during prior test or at any subsequent test.