November 1, 2013

Custody Modification in Georgia

In Georgia, custody awards are based on the “best interests of the child” standard. OCGA §19-9-3(a). This means that the Judge weighs all relevant factors (including, but not limited to, factors listed under Georgia law) and uses his/her discretion to make a custody determination based on “what is for the best interest of the child and what will best promote the child's welfare and happiness.” Id. However, as children grow and their needs change, a previous custody award may no longer be serving the child’s best interest. This is where a Petition for Modification of Custody comes into play.

Any Georgia custody award “may be subject to review and modification or alteration without the necessity of any showing of a change in any material conditions and circumstances of either party or the child, provided that the review and modification or alteration shall not be had more often than once in each two-year period following the date of entry of the judgment.” OCGA §19-9-3(b). This rule serves two purposes: First, it does not require a material change for a modification, which means a parent may request a modification if the child’s age, needs, schedule, etc. have changed in such a way that the current custody arrangement is no longer suitable. Second, it provides a limit on the frequency in which a parent may request a modification, which will help to cut down on a parent attempting to abuse the system or harass a former spouse.

Georgia law does go on to provide an exception to this two-year rule: If there has been a change in material conditions or circumstances of a party or the child, the two year limit may not apply. Id. The Judge has the authority to modify custody under this limited circumstance if he/she determines that it is in the best interests of the child at issue.

August 26, 2013

Andrea Sneiderman conviction and sentencing - What happens to the kids?

Andrea Sneiderman was recently convicted of several felony charges related to her husband’s “Dunwoody day care” murder and sentenced to 5 years in prison. Andrea Sneiderman sentenced to five years, by Christian Boone, August 20, 2013, ajc.com. For nearly the past year, Sneiderman and her children have been living with her parents in Johns Creek. The question now becomes: What will happen to her two young children?

Sneiderman’s parents, the children’s maternal grandparents, currently have custody of the children. There are no pending custody actions related to these children, but that does not mean there will not be a custody challenge, possibly by the paternal relatives of the children who have previously spoken about such an option. In Georgia, a party requesting a modification of custody must show “a change in any material conditions and circumstances of either party or the child.” OCGA §19-9-3(b). In this case, the fact that the mother is going to prison for 5 years will likely qualify as a material change. However, the party requesting a custody change must then prove that modifying custody is in the best interests of the children (OCGA §19-9-3(a)), and this will be a more difficult burden to prove.

Here, you have two children whose father was murdered almost three years ago, and whose mother is now going to prison for crimes related to his death. Their lives have been completely shattered and, yet, they have continued to attend school and have a “normal” childhood while living with their maternal grandparents. Their paternal relatives live in Ohio. While the details of the children’s current living situation are not known, uprooting them once again and moving them hundreds of miles away from their friends, schools and activities is likely not in their best interests. If a Peition for Modification of Custody is filed, it will be up to the Judge to weigh all the evidence and decide what is in the best interest of these children.

June 14, 2013

In Georgia, at what age can a minor decide which parent to live with, without having to go back to court?

Until a child is of the age of majority (18 years), he/she cannot choose with whom to live, absent a court order. Consider the situation of a 17-year-old child who wants to begin living with her mother, rather than her father, who has custody.

That child can "elect" to live with her mother, but in order for that election to be enforceable, the parties have to revise their Parenting Plan and have it signed off by a Judge. This can all be done by consent, but it still has to be signed off on by a Judge to make it legally binding.

If the current Parenting Plan has the father as primary physical custodian and the father is OK with the child going to live with her mother, the mother is the one that is arguably taking a risk if the Parenting Plan is not legally changed. The reason is that the father could enforce the current Parenting Plan a month later and the mother would be in contempt for failing to abide by the custody arrangements. There may be other factors to be considered as well. If you are in a situation such as the one above, your best bet would be to have a consultation with a local family law attorney so that they can ask you all relevant questions and make a informed recommendation for you.

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

December 5, 2012

If My Ex Moves to Another State, Can He/She Change Our Custody Order?

One question that is common among Georgia parents who share child custody is: “If my ex-spouse moves to another state may he or she change the custody order in that state?” If this question has ever crossed your mind as a parent, the following information will be of particular interest to you.

Georgia, along with several other states, has adopted a law called the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), which addresses this particular issue. The UCCJEA sets standards for when a court may make a custody determination, when a court must comply with an existing child custody order from another state, and when and how a state may enforce a preexisting child custody order from another state. This law helps standardize how custody orders are treated. This in turn helps solve many problems created by disagreements over custody between parents living in different states, like whether or not the custody order should be modified.

Generally, a court may not make an initial custody determination or modify a pre-existing custody decision entered in another state, unless the following criteria are met:
(1) The state is the home state of the child on the date the modification proceeding is initiated, or the state was the home state of the child within six months before the modification proceeding was initiated and the child is currently absent from the state but a parent or person acting as a parent continues to live in the state;
(2) A court of another state does not have jurisdiction under section (1), or a court of the home state of the child has declined to exercise jurisdiction on the ground that the state seeking to modify is the more appropriate forum … and:
(a) The child and the child's parents, or the child and at least one parent or a person acting as a parent, have a significant connection with the state other than mere physical presence; and
(b) Substantial evidence is available in this state concerning the child's care, protection, training, and personal relationships;
(3) All courts having jurisdiction under sections (1) or (2) have declined to exercise jurisdiction on the ground that the court seeking to modify is the more appropriate forum to determine the custody of the child; or
(4) No court of any other state would have jurisdiction under the criteria specified in sections (1), (2), or (3) above.
See O.C.G.A. §§ 19-9-61; 19-9-63.

Additionally, a court of the state that entered the original order must have determined it no longer has exclusive, continuing jurisdiction over the matter under the UCCJEA or that a court in the state seeking to modify the order would be a more convenient forum under the UCCJEA; or that a court of the state seeking to modify the order or a court of the state which entered the original order determines that neither the child nor the child's parents or any person acting as a parent presently resides in the state where the original order was entered. See O.C.G.A. § 19-9-63.

If the above mentioned criteria are not met, the new state in which the non-custodial parent is seeking a modification may not enter an order modifying child custody. In essence, if your original child custody order was entered by a Georgia court and you and your child are still residents of the state of Georgia, it is very unlikely that your co-parent will be able to obtain a modification of child custody in any other state. However, like any rule, exceptions do apply. If you would like further information on how this law may affect your child custody matter, please contact one of our knowledgeable and courteous family law professionals.

By A. Latrese Martin, Associate Attorney, Meriwether & Tharp, LLC

October 8, 2012

High Profile Child Custody Battles: Bill Verst vs. Lindsay Jackson

In this second installment of our series, “High Profile Child Custody Battles,” we discuss the case of Bill Verst vs. Lindsay Jackson. Many fans of the reality television show: Toddlers & Tiaras are likely already intimately familiar with this story. However, for those of us who are not, some background information may be helpful……

In an episode of the television show Toddler & Tiaras, which features mothers and daughters who participate in beauty pageants designed for younger girls, Lindsay Jackson dressed her daughter Madisyn Verst in a Dolly Parton outfit. The outfit was complete with “enhancements” which altered the child’s physical appearance to better resemble Parton’s (you can view pictures of Madisyn’s outfit by visiting ABC News and Fox News.com).

After the show aired, there was backlash, as many online commentators and critics of the show expressed their outrage at Lindsay Jackson’s actions. In fact, shortly after the episode, People Magazine featured Madisyn Verst on its cover with a headline asking, "Gone Too Far?"

Well, apparently Bill Verst, Madisyn’s father believes that the episode did in fact go too far, and in response, he is now seeking primary custody of his daughter. During proceedings in a Kentucky courtroom, Bill Verst argued that Lindsay Jackson should lose custody of their daughter because of her sexual exploitation of their child on the popular television show. Court proceedings began in mid-August.

During one of the initial hearings, held in Campbell County, Kentucky on August 17-18, 2012, a court appointed psychologist sided with Bill Verst, opining that the Dolly Parton outfit that Madisyn was dressed in inappropriately sexualized the young girl. As a result, the psychologist recommended that the parents temporarily maintain a joint custody arrangement, with Bill Verst serving as the primary physical custodian. Also, the judge placed a gag order on the mom, and ordered that Madisyn discontinue participating in pageants until the case is resolved.

In response to the psychologist’s opinion and recommendation, Lindsay Jackson is reported to have stated that she would have never dressed Madisyn in the Dolly Parton outfit if she knew that it would lead to such outrage and the possibility of losing her daughter. Jackson is also reported to have said that the outfit was never meant to be negative or sexual.

The judge in this case surely has a difficult task, to determine whether the custody of little Madisyn should be modified from her mother who has been Madisyn’s primary custodian for years, to her father. Such a transition, especially for a six year old child, could be traumatizing. However, in light of all of the facts surrounding the situation, the Judge will look at the best interests of Madisyn to make the best decision.

By A. Latrese Martin, Law Clerk, Meriwether & Tharp, LLC

September 24, 2012

Frequently Asked Custody Modification Question

As a family law attorney who has been practicing for many years, I have represented numerous parties in custody modification cases. Often, these cases begin because the custodial parent has been behaving in a manner that may make him or her unfit to be the custodial parent. I recently received a call from a mother whose ex-husband had primary custody of their daughter. She lived in Michigan and the father lived in Georgia. The father was going through a divorce with his new wife, who called the mother and detailed a situation that, if true, would make him an unfit parent to their child. The mother was horrified by the situation in which her child was living, and wanted to obtain primary custody.

On the surface, it sounds like the mother has a good case, but there are several issues which must be overcome. First, the mother has to take steps to confirm what the father’s soon to be ex-wife is saying. I have handled many cases like this where the soon-to-be-ex was flat out lying to gain an advantage in her divorce.

The second item that the mother will need to deal with is where to file the modification action. This situation involves the UCCJEA, or Uniform Child Custody and Jurisdiction Enforcement Act. If the divorce was granted in Georgia, she will have to file in Georgia. If the divorce was granted in Michigan and she never left, then Michigan should have retained continuing exclusive jurisdiction, unless there was a modification in some other state that took over jurisdiction.

If the action does belong in Michigan, there will be practical problems of getting the witnesses to Court to testify on her behalf because the father, and presumably his soon to be ex-wife, have been living in Georgia. Before doing anything, I would suggest that this mother contact an experienced child custody lawyer to discuss her situation in greater detail. Even if she plans on handling her case pro se (on her own), she should, at a minimum, consult with a lawyer.

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

August 22, 2012

High Profile Child Custody Battles in Georgia: Usher Raymond v. Tameka Foster

In this first, of what I hope to be the last installment in the series “High Profile Child Custody Battles,” we turn to the case of Usher Raymond vs. Tameka Foster. Some background information on the couple’s marriage and subsequent divorce may be helpful.

Raymond, a well know R&B singer from the Atlanta area, was married to Foster from August of 2007 to February of 2009, when Raymond filed for divorce. During their marriage, the couple had two sons, Usher Raymond V and Naviyd Ely, who are ages 4 and 3 restively. Since their divorce in 2009, Foster has maintained custody of the couple’s minor children, receiving child support from Raymond in the amount of approximately $8,000 per month.

As is reported by Fox Atlanta and the Atlanta Journal Constitution, Raymond is now seeking to modify the co-parenting arrangement between himself and Foster in order to obtain full custody of his two sons. Foster, who recently lost her oldest son, a child from a previous relationship, in a tragic jet skiing accident, is fighting Raymond’s petition vigorously in order to maintain custody of her youngest sons, and the case is now being heard in Fulton County Superior Court. The hearing on the custody modification action was conducted in Fulton County earlier this month.

In has been reported that in his complaint, Raymond alleged that Foster is not a good parent, she may be suffering from emotional and anger issues, and she has failed to foster a parental bond with the children. On the other hand, Foster is alleging that although Raymond is a good parent, he is absent a lot, which affects his ability to effectively co-parent. Foster also alleges that Raymond’s lifestyle as an R&B singer would not be a conducive environment in which to raise young children.

Looking to Georgia Law on the subject of child custody modification, it seems as if this case could go either way. According to O.C.G.A. § 19-9-3, a judge must consider the “best interests of the child [or children]” when deciding issues of child custody and the modification of child custody.

In determining the best interests of the child, a judge may consider any relevant factor including, but not limited to:

(A) The love, affection, bonding, and emotional ties existing between each parent and the child;
(B) The love, affection, bonding, and emotional ties existing between the child and his or her siblings, half siblings, and stepsiblings and the residence of such other children;
(C) The capacity and disposition of each parent to give the child love, affection, and guidance and to continue the education and rearing of the child;
(D) Each parent's knowledge and familiarity of the child and the child's needs;
(E) The capacity and disposition of each parent to provide the child with food, clothing, medical care, day-to-day needs, and other necessary basic care, with consideration made for the potential payment of child support by the other parent;
(F) The home environment of each parent considering the promotion of nurturance and safety of the child rather than superficial or material factors;
(G) The importance of continuity in the child's life and the length of time the child has lived in a stable, satisfactory environment and the desirability of maintaining continuity;
(H) The stability of the family unit of each of the parents and the presence or absence of each parent's support systems within the community to benefit the child;
(I) The mental and physical health of each parent;
(J) Each parent's involvement, or lack thereof, in the child's educational, social, and extracurricular activities;
(K) Each parent's employment schedule and the related flexibility or limitations, if any, of a parent to care for the child;
(L) The home, school, and community record and history of the child, as well as any health or educational special needs of the child;
(M) Each parent's past performance and relative abilities for future performance of parenting responsibilities;
(N) The willingness and ability of each of the parents to facilitate and encourage a close and continuing parent-child relationship between the child and the other parent, consistent with the best interest of the child;
(O) Any recommendation by a court appointed custody evaluator or guardian ad litem;
(P) Any evidence of family violence or sexual, mental, or physical child abuse or criminal history of either parent; and
(Q) Any evidence of substance abuse by either parent.

O.C.G.A. § 19-9-3.

With the applicable legal standard in mind, if we take Raymond’s allegations at face value, he is likely to prevail in his custody action against Foster. Raymond’s allegations that Foster has failed to foster a strong parental bond with the couple’s children, and his allegation that Foster may be dealing with personal and emotional issues that could impair her parenting abilities, bear on two of the above-mentioned factors that a court may consider in child support modification matters.

However, if we look to Foster’s allegations, a court may determine that it is in the children’s best interest to remain with her. As Foster alleges, removing the children from the home and circumstance that they have known for most of their lives may be detrimental to the children. Also, in light of Raymond’s career, he may not be able to provide his children with the nurturing environment or the time and attention that they need to develop successfully. These facts, too, may be considered by a judge in determine whether the custody arrangement of the parties’ children should be modified.

Georgia Law provides guidelines in order to insure that the best interests of the children involved are served in every custody order that is entered. These standards will most certainly lead the court in the Raymond v. Foster case to reach a determination that insures that the Raymond children are raised in happy and healthy surroundings.

By A. Latrese Martin, Law Clerk, Meriwether & Tharp, LLC

May 4, 2012

Transcript Extremely Important for Appeal of Georgia Family Law Cases

The Court of Appeals of Georgia recently heard a case which emphasizes the importance of having a transcript for the Court to refer to on appeal in family law cases. Johnson v. Ware, A11A1559 (2012). In that case, the trial court consolidated two actions concerning custody and visitation of the children, one action filed by each party. In one action (the “Ware Action”), the mother sought a modification of the father’s visitation. In the other action (the “Johnson Action”), the father sought primary physical custody of the children. The cases were tried together by agreement of the parties. Id. at 2. After the trial (in which there was no transcript takedown), the trial court held that the mother should remain the primary physical custodian and included a Parenting Plan, which specifically outlined visitation. Id. at 3.

The father appealed, arguing that the trial court erred in modifying custodial rights he was given under the parties’ settlement agreement and divorce decree. Id. at 4. According to the Court of Appeals, however, he could not show reversible error because neither the settlement agreement nor the divorce decree was in the record on appeal. Id. In addition, there was no transcript so there was no evidence regarding how that issue was treated at trial. Id. at 5. The Court of Appeals held: “The burden is on the party alleging error to show it affirmatively by the record. When the burden is not met, the judgment complained of is assumed to be correct and must be affirmed.” Id. at 5. The Court, therefore, affirmed the trial court’s decision. The father also asserted that the trial court erred by refusing to hear all the evidence he offered at trial. Id. However, again, without a transcript, the father was unable to prove this assertion and the trial court’s order was affirmed. Id. at 6.

This case shows the importance of having the court reporter takedown the proceedings. The expense involved is likely worth it as it is nearly impossible to be successful on appeal without having evidence of what happened at the trial court level to which the Court of Appeals of Georgia or Supreme Court of Georgia can refer.

April 13, 2012

Can smoking make you lose custody of your children?

I recently read an interesting article about how a parent’s smoking may affect child custody. Smokers losing custody cases a growing trend, by Myra Fleischer, The Washington Times. According to the article, “states are increasingly factoring cigarette smoking in making decisions about who gets custody of minor children. An anti-tobacco advocacy group surveyed custody cases involving smoking found that many courts have issued orders prohibiting smoking in the presence of a child, or even within 24 hours before a child arrives in the home. The survey further found that no court has ever ruled that subjecting a child to tobacco smoke should be ignored in deciding custody.

In Georgia specifically, custody is awarded according to the best interest of the child standard, and the court can consider any factor in making that decision. Thus, it is well within the confines of Georgia law for a judge to consider smoking as a factor in determining custody. According to the article, there was a Georgia custody modification case in which the mother was addicting to smoking and, after the divorce, her child was found to have asthma. In reaching its decision, the Georgia court “found that the mother was smoking in the presence of her child, which it said implied that she had insufficient concern for her child.” This reason alone was enough to change custody.

This article further shows how anything and everything can come into play in a custody battle, especially if the parent is engaging in an activity that is harmful to the child. If you are a smoker and going through a custody fight, and are unable to break the habit, at the very least you should not smoke in the presence of the children or allow others to do so.

December 12, 2011

Mindy McCready custody dispute - what not to do when seeking a custody modification

In yet another celebrity family law case that has made national news, country singer Mindy McCready has found herself in the middle of a custody dispute with her mother. Mindy McCready’s son found in Arkansas, CNN.com, December 3, 2011. Due to McCready’s troubled past, the singer’s mother has custody of her 5-year-old son and McCready has visitation rights. Last week, McCready unlawfully took her son from her mother’s home claiming he was not safe there, and asked a court to restore custody to her, all the while refusing to travel back to Florida per a Judge’s order. Authorities recently found McCready and her son in Arkansas, and her son will be returned to McCready’s mother in Florida.

Though this case is not in Georgia, it sets a good example of what not to do when you are seeking a custody modification (which is presumably what McCready was trying to do). If there is a custody order in place, you must follow that order, until there is another order replacing it. If you feel your child is in danger under the current custody arrangement, you can file an emergency petition for modification of custody, which will be heard more quickly, or you can seek the help of law enforcement, if necessary. Taking matters into your own hands usually only makes things worse. Remember, the judge will always be looking at the best interest of your children. McCready likely made things much worse for herself by acting above the law and taking her son without first going through the court system, as these actions will be considered by the judge in the custody modification action.