Atlanta Divorce Attorney Blog

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

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

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

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

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.

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.

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.

According to TMZ.com**, Usher Raymond’s ex-wife has filed actions for modification of child support and modification of custody/contempt against the singer in Atlanta, Georgia. Usher’s Ex-Wife: You Don’t Deserve Our Kids, TMZ.com, November 29, 2011.

In the child support modification action, Ms. Raymond is claiming that Usher has continued to have financial success since their divorce and she should, therefore, get an upward modification of child support. In Georgia, if she can prove that there has been a substantial change in his income, specifically that he is making significantly more money now, she will likely get the upward modification she is seeking. This assumes there are no other factors at play.

In the custody modification action, which seems to include contempt claims, Ms. Raymond is claiming that: (1) Usher has failed to obtain the required permission from her to travel out of state with the children; (2) Usher has failed to get her approval before hiring nannies, as required; (3) Usher has failed to give her the first chance to watch the children when he is away for an extended time, as required; (4) Usher failed to allow her to have the children for 2-weeks in the summer of 2011, as required; and (5)Usher refused to let her have custody of the children during winter break in 2010, as required. In Georgia, to obtain a custody modification, Ms, Raymond must prove that there has been a substantial change affecting the best interests of the children. The judge will weigh all relevant factors and may appoint a guardian ad litem to do a custody evaluation if the parties are unable to come to an agreement. If the parties are unable to come to an agreement, this case could go on for a long time as a full custody investigation and evaluation will likely be completed. It should be noted that, if these claims are filed as a contempt action rather than a custody modification action, the judge cannot change custody in a contempt action. Thus, Ms. Raymond will have to file a separate petition for modification of custody.

**The facts reported in the blog are based solely on the article cited above. The author is not involved in the case.

With the holiday season upon us, many divorced parents in Georgia will look to their parenting plan for guidance on arranging their holiday schedules. Parenting plans are custody agreements that are submitted jointly or individually by each party in an action that involves child custody in Georgia. Except in those cases where emergency relief is necessary due to family violence, parenting plans are required in all actions in Georgia where child custody is at issue.

A parenting plan may be temporary until a final decree is entered, at which time a permanent parenting plan will go into effect. Under Georgia law, when considering either a joint plan or opposing plans of the parties, the court must make its determination based upon the best interest of the child. O.C.G.A. § 19-9-3. The court bases its determination on a number of factors including, but not limited to, the relationship that exists between each parent and the child, and the ability of each parent to provide the child with basic necessities. Id. at a(3).

Parenting plans require that both parties acknowledge and decide on a variety of issues. O.C.G.A. § 19-9-1. Holiday visitation is one such issue, and it can be difficult and emotional for parties to come to an agreement because it requires each party to agree to some holidays away from their children. It may never be easy to split time with your child and the other parent, but a successful parenting plan can alleviate tensions between the parties and allow each parent to enjoy time with their child.

If you need help creating a parenting plan, or seek to modify your existing parenting plan, please contact our Atlanta divorce attorneys to assist you in the process.

By Courtney Carpenter, Associate Attorney, Meriwether & Tharp LLC

The Court of Appeals of Georgia recently affirmed a modification of visitation over the appeal by the father/primary custodian. Blackmore v. Blackmore, A11A1277 (2011). In that case, the parties shared joint legal custody of their two children with the father having primary physical custody. Id. at 2. The mother later filed a Petition to Modify Visitation, seeking “more visitation and primary decision-making authority over healthcare issues and the children’s extracurricular activities.” Id. At the recommendation of the guardian ad litem and custody evaluator, the trial court at first limited the mother’s visitation and required that it be supervised. Id. at 3. However, at the final hearing, the trial court removed the visitation restrictions and granted the mother more visitation, while keeping the father as the primary physical custodian. Id. The trial court also “ordered that each parent would make decisions regarding the day-to-day care of the children...while the children were residing with that parent." Id.

The father appealed arguing, among other things, “that the court’s final order amounted to a de facto change in custody, which was impermissible because there were no changes in material circumstances.” Id. at 8. The Court of Appeals of Georgia disagreed with the father, holding that, though “[i]t is true that a trial court may not indirectly change custody by modifying the visitation schedule,” there was no such change in this case. Id. at 9, citing Martin v. Buglioli, 185 Ga. App. 702, 703 (1988); Bullington v. Bullington, 181 Ga. App. 256, 257 (2) (1986). The Court emphasized that the increased visitation provided to the mother/non-custodial parent does not exceed the time of custody provided to the father/custodial parent. Id. at 10. Thus, the increase in visitation time, even when combined with the day-to-day decision making, does not amount to a de facto change in custody. Id.