Domestic Relations
| Publication year | 2012 |
Domestic Relations
Barry B. McGough
Elinor H. Hitt
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This Article addresses significant case law and statutory changes1 that arose during the survey period.2 Legislation passed by the Georgia General Assembly in 2011 regarding the appellate procedure and in 2012 regarding grandparent visitation rights took effect, and the Georgia Supreme Court continued to accept nonfrivolous appeals in divorce cases, providing guidance regarding domestic relations law.
The Georgia Court of Appeals considered questions of jurisdiction between courts and jurisdiction between states. In Dunbar v. Ertter,3 the Juvenile Court of Coweta County found A.J., a minor child whose parents were deceased, to be deprived, and in an order dated October 19, 2008, gave Dunbar, the child's maternal grandmother, long-term custody (subject to periodic review) of A.J. until the child's eighteenth birthday.4 On June 17, 2010, the Superior Court of Cobb County entered an order granting the Enters, A.J.'s maternal aunt and uncle, permanent custody
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of the child based on the best interests of the minor child. Dunbar appealed the superior court's order.5
The Georgia Court of Appeals reversed the superior court's grant of permanent custody of A.J. to the child's aunt and uncle when the prior order granting long-term custody that was issued by the juvenile court, which had exclusive jurisdiction in the matter, was unchallenged and still in effect.6
In Delgado v. Combs,7 the court of appeals held that, pursuant to the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA),8 the Georgia trial court lacked subject-matter jurisdiction to modify a Kansas custody decree and grant the father's motion for sole physical custody.9 The father failed to meet his burden of proof and show either that Kansas had been divested of exclusive, continuing jurisdiction over subject matter or that the Kansas court had made a determination that Georgia provided a more convenient forum, and that there was no evidence to support a finding that none of the parties resided in Kansas when, in fact, the mother continued to reside in Kansas.10
In Avren v. Garten,11 the trial court was upheld in its dismissal of the mother's action to modify custody and to hold the father in contempt while she, the legal guardian, was withholding the father's visitation rights.12 A legal guardian is prohibited "from bringing an action for modification of child custody or visitation rights or any application for contempt of court so long as visitation rights are withheld by the legal guardian in violation of the custody order."13
In Gallo v. Kofler,14 the Georgia Supreme Court upheld and found no error on the trial court's part in modifying custody and awarding the father custody of the parties' minor child based on the mother's planned move to New York.15 In determining it was in the child's best interest to change primary custody to the father, the court considered the following: (1) in violation of the standing order which provided that
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neither party take the child from the State of Georgia during the pendency of the litigation, the mother took the child to New York for visits and moved some of the child's belongings to New York; (2) the child had been thriving in Georgia; (3) when comparing the child's living arrangements in Georgia and in New York, the child had better quality of life in Georgia; (4) the child's relationship with the father would be harmed by moving to New York; and (5) the mother showed a lack of financial stability.16
During the survey period, both appellate courts and the state legislature dealt with grandparents' right to seek custody of or visitation with their grandchildren. In Scott v. Scott,17 the paternal grandparents sought custody of their two granddaughters, asserting that on March 4, 2008, the children's father was murdered by the mother, and that the mother was set to be tried for the murder on the same date the grandparents filed their petition.18 The grandparents asserted standing to seek custody pursuant to sections 19-7-1(b.l)19 and 19-9-220 of the Official Code of Georgia Annotated (O.C.G.A.).21
The trial court granted the mother's motion to dismiss the grandparents' petition, concluding that additional facts should have been alleged and were required to survive the motion to dismiss.22 The Georgia Court of Appeals disagreed, holding that the grandparents' petition gave fair notice that they sought custody under O.C.G.A. §§ 19-7-1(b.l) and 19-9-2 based on the mother's alleged murder of the father.23 The court observed, "[M]urder of one parent by another can be considered as evidence of parental unfitness,'' so these allegations were enough to survive a motion to dismiss.24
The mother also argued that because another court denied the grandparents' request for visitation two years prior, their current petition for custody was barred by the doctrine of collateral estoppel, which "precludes the re-adjudication of an issue that has previously been litigated and adjudicated on the merits in another action between the
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same parties or their privies,"25 and by res judicata pursuant to the UCCJEA,26 which states,
A child custody determination made by a court of this state that had jurisdiction under this article binds all persons. . . who have submitted to the jurisdiction of the court, and who have been given an opportunity to be heard. As to those persons, the determination is conclusive as to all decided issues of law and fact except to the extent the determination is modified.27
In the prior visitation action, the grandparents were required to show that the children would be harmed unless visitation was granted and that the interests of the children would be best served by such visitation.28 However, in the court of appeals decision, a third-party custody action, the grandparents were required to show by clear and convincing evidence that the children would suffer physical or emotional harm if custody were awarded to the mother, and that an award of custody to the paternal grandparents was in the children's best interests by promoting the children's welfare and happiness.29
"[D]ifferent issues were actually and necessarily decided in the visitation action" than were to be decided in the court of appeals custody case; therefore, collateral estoppel did not prevent the grandparents from seeking custody of their grandchildren after they failed to have visitation rights established.30 Similarly, res judicata did not bar the grandparents' current custody action because O.C.G.A. § 19-9-45 only applies to issues actually decided in a prior action.31 The prior order related to the grandparents' right to visitation, not custody, which was at issue in this action.32
The case of Kunz v. Bailey33 reviewed by the Georgia Supreme Court in January 2012, was originally decided by the court of appeals in 2011.34 The biological parents of the child at issue divorced in June 2002, and the mother soon remarried. In 2006, the biological father
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surrendered his parental rights, and the stepfather adopted the child. Following a dispute about an ongoing grandparent visitation, the biological paternal grandparents filed a petition for visitation pursuant to O.C.G.A. § 19-7-3.35 The mother and adoptive father filed a motion to dismiss; thereafter they appealed the court's denial of the motion.36
Pursuant to O.C.G.A. § 19-7-3(b), a grandparent does not have the right to file an original action for visitation rights where the parents of the child are not separated and the child is living with both parents.37 The Georgia Supreme Court upheld the court of appeals, finding error in not treating the stepfather as a parent for the purposes of the statute.38 Although the word "parent" is undefined in O.C.G.A. § 19-7-3, the adoption code defines the word "parent" to include "legal father" of a child39 and defines "legal father" as "a male who . . . [h]as legally adopted a child."40
Once the biological father surrendered his parental rights, the child became a legal stranger to the biological father's family.41 The adoptive father became the parent within the meaning of the statute, not the biological father, and thus the biological paternal grandparents had no standing to seek visitation under O.C.G.A. § 19-7-3.42
In Hudgins v. Harding,43 a case decided in January 2012, the biological paternal grandmother's request for visitation with her youngest grandchild, K.H., was at issue. Barbara Harding and Christopher McCurry were the natural parents of three children. In May 2000, Barbara Harding married Wesley Harding. In 2003, McCurry's parental rights were terminated, and Mr. Harding adopted the three children. Hudgins subsequently filed a petition for visitation rights with the children pursuant to O.C.G.A. § 19-7-3. The trial court determined that Hudgins was not entitled to seek visitation rights in light of Mr. Harding's adoption of K.H.44
The adoption of a minor child generally extinguishes any visitation rights of the child's former grandparents;45 however, O.C.G.A. § 19-7-
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3(b) sets forth a limited exception.46 A grandparent of a minor child may seek visitation rights "whenever there has been an adoption in which the adopted child has been adopted by the child's blood relative or by a stepparent, notwithstanding the provisions of [ O.C.G.A. §] 19-8-19."47 However, an original action is not authorized "where the parents of the minor child are not separated and the child is living with both parents."48
Relying on an obsolete version of the statute, the trial court concluded that Hudgins was not entitled to visitation rights with the child, because the child had been adopted by a stepparent who was not a blood relative of the child.49 It was improper for...
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