Tag Archives: Modification

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.

Child Custody Litigation

Child Custody LitigationChild 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.

  1. Violence.
  2. Use of drugs
  3. Frequent consumption of alcohol.
  4. Improper romantic or sexual relationships.
  5. Mistreatment of a child.
  6. Interference with a child’s relationship with the other parent.
  7. Failure to exercise all possible visitation or contact with the minor children.
  8. Failure to pay child support or other support as required.
  9. 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 Firm for a free consultation at 404-348-4081.

 

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.

GA Supreme Court partially reversed the order retroactively extinguishing alimony obligation.

The Supreme Court partially reversed the order retroactively extinguishing William Branham’s alimony obligation to his former wife Jenny Nicholson f/k/a Branham, holding that the trial court’s order vitiated the finality of the judgment obtained as to each past due installment and was therefore clearly contrary to the rule set forth in Hendrix v. Stone, 261 Ga. 874 (1992). However, the Court affirmed that portion of the order providing that each party would be responsible for his or her own attorneys’ fees, holding that Nicholson waived her right to challenge the order under O.C.G.A. § 19-6-19 (b), where she acquiesced in the trial court’s ruling, never requested attorneys’ fees and failed to provide any evidence supporting a claim for attorneys’ fees.

Branham v. Branham, S11A1896 (01/09/12)

Fulton County Daily Report, January 13, 2012

GA Supreme Court partially reversed the final judgment in the parties’ divorce case.

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

GA Order refusing to allow husband to seek downward modification of child support, reversed.

Order refusing to allow husband to seek downward modification of child support pursuant to O.C.G.A. § 19-6-15 (j), reversed, as floor amount of child support provided in parties’ settlement agreement did not construe clear and express waiver of right of modification; parties’ decision not to include in their agreement well-worn waiver language set forth in Varn v. Varn, 242 Ga. 309 (1978), or its equivalent, suggested that they did not intend to forbid statutory downward modification of husband’s child support obligation, even below floor amount.

Dean v. Dean, S11A0739 (09/12/11)

Fulton County Daily Report, September 23, 2011

GA Modification of Child Custody

Order granting father’s petition to modify child custody rights awarded to mother in parties’ prior divorce decree, PARTIALLY REVERSED; mother’s claim of error in trial court’s custody award, DISMISSED, as child turned 18 shortly after instant appeal was docketed; trial court ERRED to extent that it required mother to pay child support pursuant to OCGA 19-6-15 (e), with no limit as to age, because financial assistance after child reaches age of majority but is still in secondary school is only required until child reaches age 20; trial court’s award of attorneys’ fees to father, VACATED and case remanded, because original award of attorneys’ fees failed to include statutory basis for award of findings authorized award, and no evidence showed that mother received proper notice or opportunity for hearing.

Francis-Rolle v. Harvey, A11A0357 (05/05/11)

From:  Fulton County Daily Report, May 20, 2011

Trial court’s award of primary custody of children to father, AFFIRMED.

Trial court’s award of primary custody of children to father, AFFIRMED, since fact that trial court read case file – which included testimony previously submitted by affidavit, but not admitted into evidence – did not provide that trial court consdered affidavit as evidence for purposes of final hearing or used information in affidavit in reaching decision.

Carroll v. Carroll, A10A2332 (11/29/10), 10 FCDR 3938.

From:  Fulton County Daily Report, 12/17 /2010.