Atlanta Divorce Attorney Blog

A decision of a Fulton County judge regarding jurisdiction in a custody modification case was recently overturned in Murillo v. Murillo, 360 Ga. App. 61 (2009). A husband and wife were divorced in Fulton County in 1997 and the wife was granted custody of the parties’ child. Id. at 62. In 2002, the wife moved with the child to North Carolina. In 2008, pursuant to the Uniform Child Custody Jurisdiction and Enforcement Act (“UCCJEA”), the husband filed a Petition to Modify Custody in Fulton County Superior Court. Id. The trial court then granted the wife’s motion asking the court to decline jurisdiction as North Carolina was the more convenient forum for the proceeding. Id.

Generally, since Fulton County was the court that entered the original custody ruling, Fulton County had “exclusive, continuing jurisdiction” over the modification action unless the court determines that it determines that it is an inconvenient forum under the circumstances and that a court of another state is a more appropriate forum. OCGA §19-9-67. To make that determination, OCGA §19-9-67(b) requires the court to consider all of the following factors:

(1) Whether family violence has occurred and is likely to continue in the future and which state could best protect the parties and the child;
(2) The length of time the child has resided outside this state;
(3) The distance between the court in this state and the court in the state that would assume jurisdiction;
(4) The relative financial circumstances of the parties;
(5) Any agreement of the parties as to which state should assume jurisdiction;
(6) The nature and location of the evidence required to resolve the pending litigation, including testimony of the child;
(7) The ability of the court of each state to decide the issue expeditiously and the procedures necessary to present the evidence; and
(8) The familiarity of the court of each state with the facts and issues in the pending litigation.

In vacating the decision of the Fulton County court, the Court of Appeals did not say that the end result was incorrect per se, but rather emphasized that the court did not consider and reference ALL of the required factors in its written Order in making its decision that it was no longer a convenient forum. Id. at 64. Thus, the Court of Appeals directed the trial courts to always consider ALL of the factors in making a jurisdiction decision.

One of the most confusing aspects of child custody cases can be where the case should be filed when the parents live in different states. Generally, in regards to custody modification actions, the law limits a parent’s ability to terminate the continuing jurisdiction of the court that made the original custody determination in order to prevent the noncustodial parent from trying to use his or her “home jurisdiction advantage” to modify custody to the disadvantage of the custodial parent. There is, however, one exception to this general rule which provides that a Georgia court "has temporary emergency jurisdiction [to make a child custody determination] if the child is present in this state and . . . it is necessary in an emergency to protect the child because the child . . . is subjected to or threatened with mistreatment or abuse." O.C.G.A. §19-9-64(a).

The Georgia Court of Appeals recently addressed this issue in Taylor v. Curl (A09A0749). In that case, subsequent to the parties’ Jackson County divorce, the mother moved with the children to Florida and the father moved to Walker County. While the children were visiting the father, he filed a petition for temporary and emergency custody of his children in the Superior Court of Walker County, citing mistreatment and abuse of the children by their mother. The mother appealed arguing that Walker County was not the proper venue for the custody modification. The Court of Appeals affirmed the trial court’s ruling granting temporary custody to the father, thereby affirming jurisdiction. Since the father met the two requirements outlined in O.C.G.A. §19-9-64(a), the trial court properly exercised temporary, emergency jurisdiction.

On March 23, 2009, the Supreme Court of Georgia affirmed the trial court’s denial of the wife’s motion for new trial in her divorce action in Rembert v. Rembert (S08F1582). Specifically, the wife alleged that the trial court erred in granting final decision making authority to the husband, who was the primary physical custodian of the parties’ children, and in awarding primary physical custody to the husband.

In regard to decision making, the wife argued that the parties did not truly have joint legal custody because the husband had final decision making authority. The Supreme Court disagreed, reaffirming a prior holding that the language of the statute governing legal custody “clearly vests in the trial court discretion to decide which parent should be empowered to make final decisions where the parents are unable to agree.” Citing Frazier v. Frazier, 280 Ga. 687, 690 (2006). As the primary physical custodian, it was appropriate that the father had final decision making authority in the likely event that the parties would not agree.

In regard to primary physical custody, the Supreme Court held that it would not disturb the trial court’s judgment awarding custody to the father, who had a stable home and a job with a regular schedule, instead of the mother, who was dating a married man, was a full time student with substantial debt, and had threatened the life of a neighbor.

Our final blog entry in our Atlanta Divorce Lawyers Guide to Divorce and Family Law Cases in Fulton County, Georgia is in regards to the Fulton County’s Guardian Ad Litem program. A Guardian Ad Litem is an attorney who has had at least 20 hours of specialized training for child welfare and custody issues. In cases involving contested child custody, modifications of custody, modification of visitation, allegations of child neglect or child abuse, the Court can assign a Guardian Ad Litem to more closely evaluate the situation and report back to the court its findings. The Court or the Guardian Ad Litem can order psychological evaluations and drug testing if applicable to help in making a custody determination.

The cost of a Guardian Ad Litem can be rather high for most divorces in Georgia. Litigants should be aware that Fulton County offers a Guardian Ad Litem (GAL) at a reduced hourly rate.

In Georgia, whether your divorce is resolved through a Settlement Agreement or with a final trial, the terms of the divorce will ultimately become an Order of the Court. Court Orders in divorce cases can be modified in limited circumstances. Specifically, Court Orders for child support, periodic alimony and rehabilitative alimony (but not lump sum alimony) may be modified upon a showing of a substantial change in your or your spouse’s financial circumstances, or your children’s circumstances. You can only bring a modification once every two years so keep this in mind when deciding whether to file a modification. Any modification of these Orders must be done prospectively. This means that the Court can only modify these Orders from the date of the filing of a petition. The Court cannot retroactively modify Court Orders. Any agreements to modify a Court Order must be in writing, executed by both parties and entered by the Court as an Order or such an agreement is not binding.

If a parent who has been awarded custody under a custody order of any type intends to move to a residence that is outside the state or a considerable distance from your home, the Court may consider the wisdom of the move. Do not wait until after the move to discuss this issue with an attorney. In Georgia, you must give at least thirty (30) days advance notice to your former spouse. Your settlement agreement may have additional requirements.

Orders of the Court regarding division of property are not modifiable at any future date. They can be changed only by amending the Final Decree, an appeal to the Court of Appeals or Supreme Court of Georgia, or by written agreement signed by both parties and filed with the court as an order.