Denial of mother’s and maternal grandmother’s motion to dismiss paternal grandparents’ petition for visitation rights or in alternative to transfer case for improper venue, reversed, as mother was not properly served with process , even though she was subject to personal jurisdiction pursuant to Georgia’s long-arm statute; clear and convincing evidence rebutted paternal grandparents’ prima facie case of proper service under long-arm statute based on sheriff’s return of service, since sheriff served mother at maternal grandmother’s prior Georgia address, even though mother was residing in Arizona at that time, and paternal grandparents submitted no evidence showing that service was proper other than sheriff’s return of service; venue was not proper in Effingham county, since maternal grandmother moved to Chatham county before paternal grandparents filed their petition; although maternal grandmother continued to utilize her former Effingham county residence address to retain certain benefits including filing temporary guardianship petition there and keeping her children in Effingham county schools, evidence showed that she was domiciled in Chatham county, so case remanded with direction for trial court to transfer it to Chatham County Superior Court.

Oglesby v. Deal, A11A1239 (09/08/11)

Fulton County Daily Report, September 23, 2011

Dismissal of petition seeking custody of plaintiff’s two minor granddaughters, reversed, as trial court erred in concluding that plaintiffs failed to state claim; petition gave fair notice that plaintiffs sought custody of children under O.C.G.A. §§ 19-7-1 (b.1) and 19-9-2 based on mother’s alleged murder of father, and these allegations were sufficient to survive motion to dismiss; collateral estoppel did not bar custody action because plaintiff’s prior unsuccessful petition for visitation involved different legal issues; res judicata did not bar custody action because O.C.G.A. § 19-9-45 only applies to issues actually decided in prior action and visitation order related to plaintiffs’ right to visitation, not custody.

Scott v, Scott, A11A1206 (09/20/11)

Fulton County Daily Report, October 7, 2011

Grant of visitation to maternal grandmother VACATED, and case remanded with direction for trial court to determine, using clear and convincing standard, whether grandchildren’s health or welfare would be harmed unless visitation is granted and whether visitation is in children’s best interests; trial court did not make these necessary findings of fact, as required by OCGA § 19-7-3 (c), and appellant only approved of form of final order, not its contents.

Cates v. Jamison, A09A1938 (12/07/09), 09 FCDR 4075

From:  Fulton County Daily Report, 12/31/2009.

A GA Superior Court has jurisdiction over the temporary  award of custody of a child to grandparents if complaint was not in nature of a deprivation petition and does not allege they should be granted permanent custody of the child because the child is deprived.

Even if an earlier petition is filed by DFACS and rejected by Juvenile court, if there is no Superior Court order transferring petition to juvenile court , jurisdiction obtained during original deprivation proceeding cannot serve to retain jurisdiction in juvenile court.

If there is no trial transcript the trial court’s remaining rulings are presumed correct.

Wiepert v. Stover, A09A0197 (07/02/09)

For more information contact:  CJ Remboldt