May 3, 2013

Termination of parental rights in Georgia

In Georgia, when considering whether to terminate a parent’s parental rights, one of the most important steps is giving that parent the full opportunity to present his/her case as to why his/her rights should not be terminated (assuming that parent wants to do so). A Georgia trial judge recently denied this right to a father in the case Hafer v. Lowry. Hafer v. Lowry, A12A2549 (2013).

In that case, the mother had sole custody of the child subsequent to the parties’ divorce. She later remarried, and the stepfather sought to adopt the child, to which the father vehemently objected. The stepfather claimed that the father’s rights should be terminated because, among other things, the father had failed to communicate with the child for over a year, and had not provided for the child as required in the divorce decree. Id. During the hearing, while the father’s attorney was presenting evidence, the judge interrupted him to stop presentation of the evidence and ruled that the father had lost his parental rights. Id. at 2. The father’s attorney objected, but the judge apparently disregarded the objection. Id.

The Court of Appeals agreed with the father and vacated the judge’s order granting the stepparent adoption and terminating his parental rights. Specifically, the Court of Appeals emphasized, “the fundamental idea of due process is notice and an opportunity to be heard.” Id.; quoting Gottschalk v. Gottschalk, 311 Ga. App. 304, 312 (2011). The Court held that “by foreclosing [the father’s] right to show cause why his parental rights should not be terminated, the trial court deprived him of a meaningful opportunity to be heard.” Hafer, at 4.

It does not matter if a party has a strong case, or if most of the evidence is against him. He still has a right to present all the evidence he has and to be fully heard on the matter. Otherwise, the ruling is contrary to due process and cannot stand.

January 30, 2012

Termination of parental rights in Georgia when father is not on birth certificate

As a Georgia family law attorney, I was recently asked how parental rights could be terminated for a father who is not on the child’s birth certificate. Generally, if you are not married and the father is not on the birth certificate, the father has no rights in Georgia so there is nothing to terminate. In a situation such as this, the father has to file a Legitimation action and ask a Court to grant him rights. If you object to the father being granted any parental rights, it would be at this point where you would contest the granting of the Legitimation.

By Patrick L. Meriwether, Partner, Meriwether & Tharp, LLC

February 25, 2011

Grandparent visitation denied by Georgia Court of Appeals

The Georgia Court of Appeals recently denied paternal grandparent visitation where the biological father had given up his parental rights. In Bailey v. Kunz, the mother was married to and had a child with the biological father. Bailey v. Kunz, A10A1809 (2011). After the biological parents divorced, the mother remarried, the biological father surrendered his parental rights, and the mother’s new husband (“adoptive father” and, with the mother, “parents”) adopted the child. Id. A dispute arose between the parents of the child (the mother and the adoptive father) and the parents of the biological father (“biological grandparents”) over visitation with the child. The parents moved to dismiss the biological grandparents’ petition for visitation “arguing that such a petition was not authorized because [they] were the legal parents and lived together with the child.” Id. After the trial court denied the petition, the parents appealed and the Georgia Court of Appeals reversed the trial court’s denial of the motion to dismiss.

The statute governing grandparent visitation states: “Except as otherwise provided in this subsection, any grandparent shall have the right to file an original action for visitation rights to a minor child or to intervene in and seek to obtain visitation rights in any action in which any court in this state shall have before it any question concerning the custody of a minor child, . . . or 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 Code Section 19-8-19. This subsection shall not authorize an original action where the parents of the minor child are not separated and the child is living with both of the parents.” OCGA §19-7-3(b).

According to the Georgia Court of Appeals, the adoptive father is a “parent” for purposes of the grandparent visitation statute because, in the adoption statute, a “parent” includes the legal father of the child. Id. at 4. It would be inconsistent to treat him as a parent in one statute but not in another. Applying this logic in this case, the parents of the minor child are not separated and the child is living with both parents, making the petition for grandparent visitation unauthorized.

April 3, 2009

Parental Rights, Divorce, Settlement Agreement - Georgia Case Law Update

On January 26, 2009, the Supreme Court of Georgia issued a ruling in Amerson v. Vandiver (S08A1707) regarding a Father’s agreement to termination of his parental rights in a divorce action. In March 2004, the parties entered into a settlement agreement in their divorce action wherein the Mother would have sole, permanent custody of the children and the Father agreed to the termination of his parental rights. Four years later, the Father moved to set aside the Final Judgment and Decree of Divorce alleging that the superior court lacked jurisdiction to terminate his parental rights.

After the superior court agreed with the Father and set aside the part of the judgment terminating his parental rights, the Mother appealed. The Supreme Court of Georgia pointed out that the juvenile courts, not the superior court, have sole jurisdiction for terminating parental rights, except in the case of adoption proceedings. Nonetheless, the Court went on to say that “[t]he stability of the family and of society demands that one who intends to attack an apparently valid decree of divorce should proceed with the utmost promptness.” The Court reversed the superior court’s ruling and held that the Father’s acts of invoking superior court jurisdiction for his divorce and entering into a settlement agreement which the superior court incorporated into its final decree, coupled with the Father’s four year delay in trying to set the decree aside, prevented him from attacking the agreement.

October 6, 2008

Georgia Family Law Case Update – Termination of Parental Rights in Georgia

On July 16, 2008, the Georgia Court of Appeals issued a ruling In the Interest of J. L. C., A08A0679, that upheld a termination of parental rights. In that matter, DFCS petitioned for the termination of parental rights based upon allegations that the parents had not: 1) obtained adequate housing for the child; 2) maintained employment; 3) contributed to support for the child; 4) visited the child, and had a history of chronic, un-rehabilitated use of drugs or alcohol. The Georgia Court of Appeals agreed with the trial court noting that the criteria for terminating parental rights are well established:

"First, there must be a finding of parental misconduct or inability, which requires clear and convincing evidence that: (1) the child is deprived; (2) the lack of proper parental care or control is the cause of the deprivation; 3) the cause of the deprivation is likely to continue; and (4) continued deprivation is likely to cause serious physical, mental, emotional, or moral harm to the child. If these four factors exist, then the court must determine whether termination of parental rights is in the best interest of the child, considering the child’s physical, mental, emotional, and moral condition and needs, including the need for a secure, stable home."