Atlanta Divorce Attorney Blog

With school getting out and summer upon us, it seems appropriate to discuss summer visitation. Whether you are currently going through a divorce, or have already gone through a divorce, summer visitation is something that you and your former spouse (or soon-to-be former spouse) should discuss. Camp and other extracurricular activities can often take up a lot of the children’s time, so it is important that you are on the same page about these activities and how they may impact visitation.

If your divorce is final, you are required to abide by your final divorce decree regarding vsummer visitation. Often, divorce decrees allow each parent to take the children on a vacation for up to two uninterrupted weeks, so long as each parent notifies the other of his/her intent. I recommend that you go back and read your divorce decree to make sure you are clear on your rights and obligations.

If you do not yet have a final divorce decree and there is no temporary order governing custody and visitation for the summer, I highly recommend that you seek to get a temporary agreement in place. There are several reasons for coming to a summer visitation arrangement sooner rather than later: (1) You can make travel plans, if necessary; (2) You can make arrangements for taking time off work or arranging child care/camp during the time you have the children; and (3) You can ensure that both parents will have some time with the children over the summer.

The Georgia Court of Appeals recently reaffirmed long standing law in limiting court ordered visitation to parents and grandparents. Morris v. Morris, A11A0013 (2011). In that legitimation case, the biological mother appealed the legitimation order, not because the trial court granted the legitimation petition, but because the trial court granted visitation rights to the father’s sister. Id.

After the father testified that he wanted his sister “to be available to help him with child visits but not to replace him on the visitations,” the trial court awarded visitation to the father “and/or [the father’s sister],” over the mother’s objection. Id. This essentially amounted to the possibility of separate visitation for the father’s sister since, according to the wording of the order, the father was not required to be there.

The Georgia Court of Appeals agreed with the mother that it was error for the trial court to grant these visitation rights. (Interestingly, the father conceded that the trial court erred in this regard.) Id. at 2. Generally, “[t]he right to determine whom the child shall visit and associate with, and when, where, and how often these visits and associations shall take place, is an inseparable and inalienable ingredient of the right of a parent to custody and control of a minor child.” Id. at 2-3. According to Georgia law, only grandparents have the right to sue and obtain for visitation rights. OCGA §19-7-3(c). Though certain other family members may seek custody (OCGA §19-7-1(b.1)), the father’s sister was not doing so. Therefore, since no Georgia law exists to award visitation in this circumstance, the order awarding visitation rights to the father’s sister was vacated.

The Supreme Court of Georgia recently upheld an award of attorney’s fees based upon Wife’s conduct during the divorce litigation that caused the Husband to incur unnecessary attorney’s fees. Abt v. Abt, S11F0670 (2011). In that case, after a temporary hearing, the parties were awarded joint legal custody of their two children, with the Wife being named primary physical custodian. Id. Subsequently, the Wife’s boyfriend moved into the marital residence, and “the children revised their election of custodial parent several times, related in part to wife’s new boyfriend and his residence in the home.” Id. Just prior to the final trial, the wife moved for appointment of a guardian ad litem, and the trial was delayed so a guardian could be appointed “to address the custodial fluctuations of the children.” Id. After the final hearing, the trial court ordered the Wife to pay Husband $14,862.50 in attorney’s fees and the Wife appealed. Id. at 2.

The attorney’s fees were awarded pursuant to OCGA §9-15-14(b), which authorizes “an award of reasonable and necessary attorney fees upon a finding that an action or any part thereof lacked substantial justification, was interposed for delay or harassment, or an attorney or party unnecessarily expanded the proceeding by other improper conduct.” Id. at 3. The Supreme Court of Georgia held that the trial court did not abuse its discretion in the award of attorney’s fees to Husband, as the trial court found that the Wife’s actions during the divorce proceeding “caused the children to vacillate in their respective custodial elections and resulted in the necessity for the appointment of a guardian ad litem, the need to conduce emergency hearings, the entry of an order restraining wife from approaching husband’s residence or business location, and the overall expansion of litigation.” Id. at 4. These findings supported the trial court’s holding that wife’s actions unnecessarily expanded the litigation and, thus, there was no error in the award of attorney’s fees. Id.

The Supreme Court of Georgia recently held a Husband to the exact language in his divorce decree, even though it may cause him hardship. Greenwood v. Greenwood, S11A0611 (2011). In that case, the parties’ final judgment and decree of divorce awarded the marital residence to the Husband, and required him to “timely refinance the marital residence...so as to completely remove the Wife from any liability relating to the underlying mortgage.” Id. If the Husband did not refinance the mortgage by the deadline, he was required to immediately pay $10,000 to the Wife as a penalty. Id. at 2. After the Husband failed to refinance the mortgage and/or pay the penalty, the Wife filed a motion for contempt. Id. The trial court found the Husband in contempt, but converted the monetary penalty into a lien against the marital residence and stated in its order that, due to current market conditions, it would give the Husband a reasonable time to sell the house to remove Wife from the mortgage. Id. at 3.

The Wife appealed, alleging that the trial court improperly modified the divorce decree, and the Supreme Court of Georgia agreed. In general, “[w]hile the trial court has broad discretion to determine whether [a divorce] decree has been violated and has authority to interpret and clarify the decree, it does not have the power in a contempt proceeding to modify the terms of the…decree.” Id. at 4; quoting Dohn v. Dohn, 276 Ga. 826 (2003). Here, the Supreme Court of Georgia held that it was “clear that the trial court improperly modified the divorce decree by converting Husband’s penalty for failure to remove Wife from the mortgage by an explicitly-stated deadline into a lien on the marital residence.” Id. at 4. A lien “that may possibly be recouped at some indeterminate time in the future” is contrary to a monetary penalty which became due on October 2, 2009 and, thus, the Supreme Court of Georgia reversed this portion of the order. Id. at 5. Though the Court was sympathetic to the hardship the market may place on Husband, allowing him a reasonable time to sell was also an impermissible modification of the divorce decree. Id. at 6.

While a petition for paternity is pending in Georgia, a party to the action (usually the mother or guardian of the child) may file a motion for a temporary order of child support. OCGA §19-7-46.2. If there is “clear and convincing evidence of paternity,” the temporary order is required to be issued in accordance with the child support guidelines, and will be valid pending a determination of parentage. OCGA §19-7-46.2(a).

Since there will have been no final determination of parentage at the time the temporary order is issued, the payments are not made to the child’s mother or guardian. Rather, any child support payments made pursuant to the order are made to the court, which deposits the money into a separate bank account to be held in escrow. OCGA §19-7-46.2(b). If there is a final judgment that the alleged father is the father of the child, the amount held in escrow “shall be paid to the appropriate person or entity along with any interest that may have accrued.” OCGA §19-7-46.2(c). The appropriate entity in this situation is likely the mother of the child. If there is a final judgment that the alleged father is not the father of the child, the amount in escrow “shall be returned to the putative father along with any interest that may have accrued.” OCGA §19-7-46.2(d).

Any relevant evidence may be introduced at a paternity hearingin Georgia, but there are specific rules regarding certain evidence, including the results of genetic testing. Specifically, the results of genetic testing “shall be admitted in evidence without the need for foundation testimony or other proof of authenticity or accuracy” so long as a party to the genetic test does not object in writing at least 30 days prior to the hearing. OCGA §19-7-46(a). If a party does object in writing within the required time frame, the evidence can still be admitted, but must be “offered by a duly qualified, licensed practicing physician, duly qualified immunologist, duly qualified geneticist, or other duly qualified person.” Id.

If a genetic test establishes at least a 97% probability of paternity, there is a rebuttable presumption of paternity. OCGA §19-7-46(b). A party can only overcome this presumption by offering clear and convincing evidence that the paternity test is incorrect. Id.

A few other items are specifically mentioned under Georgia law as admissible evidence in a paternity hearing:
(1) Evidence of a refusal to submit to genetic testing is admissible “to show that the alleged father is not precluded from being the father of the child.” OCGA 19-7-46(c).
(2) An expert’s opinion about the time of conception is admissible. OCGA §19-7-46(d).
(3) Testimony relating to sexual access to the mother by any person on or about the probable time of conception is admissible. OCGA §19-7-46(e).

Georgia law has several requirements for genetic testing performed in paternity cases:

(1) Tests must be conducted by a laboratory certified by the American Association of Blood Banks.
(2) Genetic testing must be done as soon as medically possible after the birth of the child (in cases where paternity action is initiated prior to the child’s birth).
(3) Tests must be performed by a duly qualified licensed practicing physician, duly qualified immunologist, or other qualified person (as determined by the court).
(4) The results shall be made to all interested parties as soon as available.

OCGA §19-7-45.

Types of paternity testing include, but are not limited to, “red cell antigen, human leucocyte antigen (HLA), red cell enzyme, and serum protein electrophoresis tests or testing by deoxyribonucleic acid (DNA) probes.” OCGA §19-7-46(b).

In Georgia, a child born out of wedlock is considered the biological child of both his mother and father, but only the mother is immediately considered to be the “legal parent.” In situations such as this, the father may not be supporting the child at all, or an older child may wish to know with certainty the identity of his/her father. To remedy issues such as these, a party may file a petition to establish paternity. This petition may be brought by the child, the mother of the child, any relative in whose care the child has been placed, the Department of Human Services (if public assistance is received), or an alleged father. OCGA §19-7-43(a)(1-5). The petition may be brought before the child is born, but all proceedings except service of process, discovery and depositions must be stayed until after the birth. OCGA §19-7-43(c).

Any party to the paternity proceeding may move for genetic testing of the mother, alleged father, and the child or children. OCGA §19-7-43(d). The motion must be “supported by a sworn statement (1) alleging paternity and setting forth facts establishing a reasonable possibility of the requisite sexual contact between the parties; or (2) denying paternity and setting forth facts establishing a reasonable possibility of the nonexistence of sexual contact between the parties.” OCGA §19-7-43(d). The court is required to grant the motion unless if finds good cause, or good excuse for noncooperation. Id.

The specifics surrounding genetic testing will be discussed in more detail in a future blog.

The Supreme Court of Georgia recently reversed a decision of the trial court in a divorce case, which made certain directives regarding the parties’ tax liability. Symms v. Symms, S10F1783 (2011). During the final hearing in that divorce case, there was testimony that “the parties had failed to report income from the [wife’s] photography business for the purpose of the assessment and payment of income tax.” Id. at 2. The trial court's final judgment and decree of divorce included several provisions addressing tax issues, including, but not limited to, ordering the parties to amend four years of income tax returns (for which the court specified exact dollar amounts to be used for income) and ordering that the parties be equally responsible for any tax liability and/or penalties. Id. The husband appealed, arguing, “the superior court exceeded its authority in ordering the filing of amended tax returns reflecting the legal determination of joint and several liability and the factual determinations of income.” Id. at 3.

The Supreme Court of Georgia agreed, stating generally “our State Courts are not authorized to impose income tax liability.” Id., quoting Blanchard v. Blanchard, 261 Ga. 11, 15 (1991). Specifically, the Court held that ordering the parties to be jointly and severally liable for any tax liability or penalties was “premature because of the Husband’s contested claim that he qualifies as an ‘innocent spouse’,” and that he is entitled to an IRS determination of his status as such. Id. at 3. In addition, the Court held that the dollar amounts that the trial court ordered be reported on the amendment of the previous tax returns were “either largely speculative…or blatant misrepresentations” with no accurate documentation backing them up. Id. at 4. Thus, the portion of the final judgment and decree of divorce related to the parties’ taxes could not stand.