Domestic Relations - Barry B. Mcgough and Elinor H. Hitt

• Publication year: 2011

Domestic Relations

by Barry B. McGough* and Elinor H. Hitt**

This survey period¹ saw continued evolution of domestic relations law.² Legislation passed during the 2010 and 2011 Regular Session of the Georgia General Assembly took effect during this survey period, and the Georgia Supreme Court continued to accept nonfrivolous appeals in divorce cases, which provide guidance to those interested in domestic relations law.

I. Paternity and Legitimation

In Venable v. Parker,³ a final paternity judgment was challenged. Parker executed a voluntary acknowledgment of paternity, and a final order establishing paternity and child support was entered. Several months later, Parker filed a motion to set aside the final order on the grounds of fraud and mistake.⁴ The trial court found that Parker did not meet the statutory requirements for disestablishing paternity under section 19-7-54 of the Official Code of Georgia Annotated (O.C.G.A.),⁵

* Partner in the firm of Warner, Mayoue, Bates & McGough, Atlanta, Georgia. University of California at Berkley (A.B., 1963; LL.B., 1966). Member, State Bar of Georgia.

** Associate in the firm of Warner, Mayoue, Bates & McGough, Atlanta, Georgia. University of Georgia (B.S.Ed., 1993; M.S.W., 1996); Georgia State University College of Law (J.D., 2007). Member, State Bar of Georgia.

1. This Survey chronicles developments in Georgia domestic relations law from June

1, 2010 to May 31, 2011.

2. For an analysis of Georgia domestic relations law during the prior survey period, see Barry B. McGough & Elinor H. Hitt, Domestic Relations, Annual Survey of Georgia Law, 62 MERCER L. REV. 105 (2010).

3. 307 Ga. App. 880, 706 S.E.2d 211 (2011).

4. Id.

5. O.C.G.A. § 19-7-54 (2010).

and Parker's motion was denied.⁶ However, the parties were ordered to undergo genetic testing to establish paternity of the child.⁷

The Georgia Court of Appeals held that, because Parker's motion to set aside the final order was denied, the trial court lacked authority to order genetic testing.⁸ Until the paternity order is reversed, genetic testing cannot be ordered.⁹ Judge Dillard filed a concurring opinion and identified that a final paternity judgment may be challenged by either "a motion to set aside paternity pursuant to [O.C.G.A.] § 19-7-54 [or by] an extraordinary motion for new trial based on newly discovered evidence."¹⁰

The court of appeals also addressed issues related to legitimation actions. In Baker v. Lankford,¹¹ Mark Baker moved to intervene in a legitimation action filed by Robert Lankford regarding a child, K.B., who Kristen Baker (Ms. Baker) gave birth to in December 2006 while married to Mark Baker (Mr. Baker). In June 2008, Ms. Baker told Mr. Baker that K.B. was Lankford's biological child. In February 2009, Mr. Baker filed for divorce. Before the divorce was finalized, Lankford filed a petition to legitimate K.B., and Kristen Baker consented to the legitimation. DNA tests showed a 99.997% likelihood that Lankford was the father. Mr. Baker moved to intervene and dismiss the legitimation proceeding. However, while the petition to intervene was pending, Lankford's legitimation petition was granted. Mr. Baker's motion to intervene was later denied, and his motion to dismiss was found to be moot.¹²

The court of appeals held that the trial court erred in denying Mr. Baker's motion to intervene.¹³ The requirements to intervene in an action are three-fold: "[(1)] interest, [(2)] impairment resulting from an unfavorable disposition, and [(3)] inadequate representation [by existing parties]."¹⁴ Mr. Baker was K.B.'s legal father and had parental and custodial rights to the child; thus, he clearly had an interest in the legitimation proceeding.¹⁵ The court held that Mr. Baker could also

6. Venable, 307 Ga. App. at 882-83, 706 S.E.2d at 213.

7. Id. at 883, 706 S.E.2d at 213.

8. Id.

9. Id.

10. Id. at 884 n.4, 706 S.E.2d at 214 n.4 (Dillard, J., concurring).

11. 306 Ga. App. 327, 702 S.E.2d 666 (2010).

12. Id. at 327-28, 702 S.E.2d at 667.

13. Id. at 328, 702 S.E.2d at 667.

14. Id. at 329, 702 S.E.2d at 668 (quoting Kubler v. Goerg, 197 Ga. App. 667, 668, 399 S.E.2d 229, 230 (1990)); see also O.C.G.A. § 9-11-54(a)(2) (2006).

15. Baker, 306 Ga. App. at 329, 702 S.E.2d at 668 (quoting In re White, 254 Ga. 678, 679, 333 S.E.2d 588, 589 (1985)); see also O.C.G.A. § 19-7-20 (2010).

suffer impairment from an unfavorable disposition because if, in an unappealed order, K.B. was declared to be the legitimate child of someone other than Mr. Baker, that man would take Mr. Baker's place as K.B.'s legal father.¹⁶ Further, given the fact that Ms. Baker consented to the legitimation, neither she nor Lankford could adequately represent Mr. Baker's interests.¹⁷ Therefore, the court of appeals reversed the trial court's denial of Mr. Baker's motion to intervene.¹⁸

The court of appeals addressed the question of when a father's opportunity interest begins in the case of In re V.B.L.¹"⁹ Ten years after Lucius Christian had a brief encounter with Brandy Smith, he found out he fathered a child with her. The maternal grandmother, Donna Smith, sought to adopt the child (V.B.L.), who had been in her custody for six years. After Christian learned of his child, he filed a motion to intervene in the adoption and to determine the paternity of V.B.L. Once DNA testing confirmed the child was his, Christian sought to legitimate. The juvenile court granted Christian's legitimation petition after finding he had not abandoned his opportunity interest in developing a relationship with V.B.L., but the court refused to consider Christian's actions during the ten-year period before he learned he was the child's father.²⁰

The court of appeals determined that Christian's opportunity interest began when he had unprotected sex.²¹ Thus, the juvenile court should have considered Christian's actions not only "since he learned of his parentage, but also since the time that he engaged in a nonmarital sexual relationship with [the child's mother] in 1999."²²

II. Child Custody

During the survey period, the Georgia Court of Appeals and the Georgia General Assembly both addressed issues related to child custody. In Price v. Wingo,²³ the maternal grandparents, the Wingos, were awarded custody of their two-year-old grandson following his parents 2008 divorce. Ten months later, the father filed an action to modify custody, which the trial court denied.²⁴ The court of appeals began its opinion by acknowledging that

16. Baker, 306 Ga. App. at 330, 702 S.E.2d at 668.

17. Id. at 330, 702 S.E.2d at 668-69.

18. Id. at 330, 702 S.E.2d at 669.

19. 306 Ga. App. 709, 709, 703 S.E.2d 127, 128 (2010).

20. Id. at 710-11, 703 S.E.2d at 128-29.

21. See id. at 713, 703 S.E.2d at 130.

22. Id.

23. 306 Ga. App. 283, 701 S.E.2d 904 (2010).

24. Id. at 283, 701 S.E.2d at 905.

[o]nce a third party has been awarded permanent custody of a child in a court proceeding to which a parent was a party, . . . the third party [then] has the prima facie right to custody as against the parent who has lost the right to custody. The parent can regain custody upon showing by clear and convincing evidence his or her present fitness as a parent and that it is in the best interest of the child that custody be changed.²⁵

Here, the trial court found that the father established his present fitness as a parent but that he failed to show the change in custody was in the child's best interest.²⁶ The trial court noted the father's short remarriage as the primary change in circumstance.²⁷

The father asserted that the trial court erred in considering evidence relating to matters that took place before the 2008 custody award-namely, testimony about the father's two prior short marriages. The court of appeals agreed that in determining the father's present fitness, evidence as to unfitness must be confined to matters transpiring after the divorce.²⁸ However, "[i]n determining the best interests of the child, the judge may consider any relevant factor[,]" which includes past performance of parenting responsibilities.²⁹ Thus, the trial court was allowed to consider the short duration of the father's two previous marriages and find that, because of the father's remarriage, the father did not establish by clear and convincing evidence that the best interests of the child required a change in custody.³⁰

During this survey period, two cases were reviewed that involved grandparents bringing original actions for visitation rights with their grandchildren. In Lightfoot v. Hollins,³¹ the child at issue was born in 2002. Following the parents' 2004 divorce, the mother was awarded primary custody, but she died a few months later. Following her death, the father obtained primary custody and limited the Hollins's, the maternal grandparents, access to the child. The father remarried in September 2006, and his wife adopted the child in April 2007.³²

25. Id. (quoting Durden v. Barron, 249 Ga. 686, 687, 290 S.E.2d 923, 924 (1982)).

26. Id. at 283-84, 701 S.E.2d at 905.

27. Id.

28. Id. at 284, 701 S.E.2d at 905.

29. Id. at 284, 701 S.E.2d at 905-06 (first alteration in original) (internal quotation

marks omitted); O.C.G.A. § 19-9-3(a)(3) (2010 & Supp. 2011).

30. Price, 306 Ga. App. at 284, 701 S.E.2d at 906.

31. 308 Ga. App. 538, 707 S.E.2d 491 (2011).

32. Id. at 538, 707 S.E.2d at 491-92.

In November 2009, the Hollins filed an action for visitation pursuant

to O.C.G.A. § 19-7-3,³³ alleging that the father only allowed them to see the child twice since the mother's death.³⁴ The father filed a motion for summary judgment, arguing that the Hollins's rights had been extinguished when the stepmother adopted the child. Moreover, the father argued, the maternal grandparents failed to provide clear and convincing evidence that the child's health or welfare would be harmed if visitation was not permitted and that it was in the child's best interest for visitation to be granted.³⁵

The Hollins asked the court to appoint a guardian...