Tag Archives: Child Custody

Custody vested in Father when Mother voluntarily surrendered custody to a Grandparent

Custody vested in Father 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.

You may find the Georgia Child Support Worksheet helpful.  Also, if you are considering an uncontested divorce, you may find the Uncontested Divorce Worksheet helpful in moving forward with an uncontested divorce.

Shotwell v. Filip, A11A1728; A11A1729 (02/13/12)

Fulton County Daily Report, February 24, 2012

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.

Contempt attorney fees and expenses for family therapist.

Divorce TopicsContempt Attorney Fees and Expenses for Family Therapist: In this contempt action following entry of Dr. Scott Bowerman and Melissa Bowerman’s divorce and custody decree and subsequent related orders, the Court of Appeals reversed the grant of $5.8K in attorneys’ fees and expenses to Dr. Bowerman and the award of $3.4K in reimbursement for Dr. Bowerman’s payments to Susan Boyan, a licensed marriage and family therapist, holding that the trial court grievously erred in making such an award, since it ordered that Dr. Bowerman ‘ “[m]ay deduct the total amount, $9,200.00 from the payment of periodic alimony [$10,000 per month] at the rate of $1,500.00 per month,” ’ since, ‘ “after a decree for permanent alimony has become absolute, there is no authority given under the law by which a trial court is empowered to abrogate or modify the obligation imposed by the decree, unless such a right has been reserved by consent of the parties in the final decree itself, or an action is brought as provided under” ’ OCGA § § 19-6-18 through 19-6-25.

However, the Court rejected Melissa Bowerman’s contention that the trial court erred in finding her in contempt ‘ “by failing to articulate which specific provision of any prior order” ’ she had violated, since the trial court’s various orders incorporated the terms of the parties’ agreements, which included very specific, all-encompassing requirements, including express language of commands directed at both parties. The Court also held that the lack of a transcript prevented the trial court from reviewing Melissa Bowerman’s second and sixth enumerations of error and prevented Melissa Bowerman from showing harm from any alleged error in the trial court’s modification of summer visitation. Next, the record belied Melissa Bowerman’s contention that the trial court made any modification to the order granting equal rights to the parties, unless they are unable to agree regarding healthcare. Finally, the trial court’s order requiring Dr. Bowerman and his daughter to enter into counseling did not alter legal custody, and the Court declined to consider the daughter’s affidavit, since she did not testify at the contempt hearing, denying her father the right to cross-examine her.

For more information about the facts of this case, see:  Bowerman v. Bowerman, A11A1895 (03/01/12)

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.

Custody to the Grandparents.

ContemptCustody to the Grandparents.  The Court of Appeals affirmed the judgment awarding custody of Kyung Trotter and Michael Ayers Jr.’s minor child to the child’s paternal grandparents, holding that the trial court did not apply the wrong legal standard for determining when a third party can be granted custody of a minor child over the biological parents. In so holding, the Court noted that the custody dispute arose in 2009, when the child was being raised by the paternal grandparents, having been abandoned by the father, thus the standard is predicated on O.C.G.A. § 19-7-1 (b.1), which governs custody disputes between a biological parent and a limited number of third parties who are related to the child, including grandparents. The trial court’s final custody order reflected that the trial court properly applied the correct legal standard in ruling that the presumption in favor of granting custody to the mother was rebutted by clear and convincing evidence and that the child’s best interests would be better served by awarding custody to the paternal grandparents. The Court also held that, absent a transcript, the trial court’s rulings regarding the sufficiency of the evidence and several additional alleged errors were presumably correct. Next, the trial court did not err in granting the guardian ad litem’s request for a custody evaluation, as Superior Court Rule 24.9 (8) (a) authorizes the same. Finally, the mother failed to carry her burden of showing harm from the court-appointed custody evaluator’s failure to timely provide her with a written report of the evaluation; the trial court did not err in permitting the grandparents to intervene in response to the mother’s petition seeking a change in custody; the record belied the mother’s contention that the trial court did not rule on her motion to dismiss the grandparents’ motion to intervene; and the mother’s pro se brief violated Court of Appeals Rule 25 (a) (1), because many pages of the procedural and factual background section contained no ‘ “citation of such parts of the record or transcript essential to a consideration of the errors complained of.”

Custody to the Grandparents.  For more information about the facts of this case, see Trotter v. Ayers, A12A0702 (03/05/12).

Fulton County Daily Report, March 16, 2012

If you have questions about CUSTODY TO THE GRANDPARENTS, 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 Court of Appeals affirmed the grant of primary custody to the mother, holding that the trial court did not abuse its discretion.

The Court of Appeals affirmed the grant of primary physical custody of the parties’ daughter to the mother, holding that the trial court did not abuse its discretion. Absent a request to do so, the trial court was not required to set forth in its order factual findings upon which to base a determination as to either parent’s fitness, and neither party made such a request here. Moreover, a fitness determination was implicit in the trial court’s award of joint legal custody to both parents, primary physical custody to the mother, and secondary physical custody to the father. The Court also held that evidence supported the trial court’s conclusion that awarding primary physical custody to the mother would result in the least amount of disruption in the child’s life and would be in her best interest.

Curtice v. Harwell, A11A2393 (12/08/11)

Fulton County Daily Report, December 29, 2011

GA Court of Appeals affirmed the grant of petition for legitimation and award of physical custody.

The Court of Appeals affirmed the grant of Isaac Hooks’ petition for legitimation and award to him of physical custody of his son with Ayn Murray, holding that the trial court did not violate Murray’s due process rights. The trial court’s order indicated that Murray, who was incarcerated, appeared at the bench trial on Hooks’ amended petition and, in the absence of a transcript, the trial court’s findings are assumed to be supported by the evidence. To the extent that Murray claimed that her due process rights were violated at prior hearings held in her absence, the Court held that Murray failed to demonstrate harm, as the orders resulting from those hearings were either superseded or vacated. Moreover, any procedural violations as to such hearings were cured by the subsequent bench trial, where the Court assumed Murray received adequate notice and an opportunity to be heard.Murray v. Hooks, A11A1824 (12/15/11)

Fulton County Daily Report, January 6, 2012

 

 

 

GA Supreme Court reversed the denial of motion for new trial.

The Supreme Court reversed the denial of Michelle Vaughn’s motion for new trial following the entry of the final order granting primary physical custody of her two children to former husband David Davis, holding that the trial court erred in relying on evidence adduced at a temporary custody hearing in violation of the rule set forth in Pace v. Pace, 287 Ga. 899 (2010). The record and the trial court’s final order explicitly established that the trial court relied on evidence from the temporary hearing, and there was no indication that either party was notified of this reliance in advance.

Vaughn v. Davis, S11A1950 (01/09/12)

Fulton County Daily Report, January 13, 2012

GA Trial court did not err in barring mother’s counsel from questioning guardian ad litem (GAL).

Judgment entered in divorce and custody action, which resulted in certain equitable division of property, child support orders entered against both parties, and custody of parties’ only child to paternal grandparents, affirmed; trial court did not err in barring mother’s counsel from questioning guardian ad litem (GAL) about her knowledge of applicable legal standards in custody award to third party and whether GAL was familiar with named appellate case, since role of GAL at trial is not to expound on matters of law, but as expert witness on best interest of child in question; record belied mother’s contention that court improperly terminated her cross-examination of GAL, after trial court halted disputed line of questioning; clear and convincing evidence of parental unfitness, particularly on mother’s part, supported trial court’s award of custody of parties’ minor child to his paternal grandparents; inter alia, evidence showed illegal drugs and alcohol abuse in mother’s home, mother admittedly purchased alcohol for consumption by at least one of child’s half-brothers, some of half-brothers were arrested on multiple charges while in home,  mother was arrested incident to drug raid in her home, mother required child to provide his urine so that third party could pass court-ordered drug test, there were significant violent episodes in home, mother violated DFACS safety plan with regard to child, child was absent for at least 29 days in first four months of kindergarten, and mother removed from her name and placed in name of her sons all assets, including homes, vehicles, bank accounts, and ownership of certain pedigree dogs, in obvious attempt to become judgment proof and obtain various forms of government assistance; in contrast, paternal grandparents were both retired from gainful employment, they had extensive contact with child, child spent considerable time in their custody under temporary custody order, they worked with child’s school to improve child’s situation, they provided child with stable and nurturing environment, which promoted his health and welfare, and his confidence had improved while in their care; some evidence, including mother’s own e-mail relating that her money included ‘ “anywhere from $108,000 to  $105,000 plus,” ‘ supported amount of child support order entered against her; ample evidence of father’s time and labor spent on extensive work on parties’ marital residence justified $20K award to him as his equitable share of marital estate; mother’s contention that neither she nor father had interest in house on basis that another son owned house, rejected, since clear inference from trial court’s findings was that title to residence in mother’s teenaged son was sham.

Harris fln/a Snelgrove v. Snelgrove, S11F0892 (11/21/11)

Fulton County Daily Report, December 9, 2011