Wednesday, 07 March 2012 17:25 Written by David Canale
Interstate custody disputes are more and more common occurrences in the practice of family law, due largely to the increased mobility of our society. When parties are divorced in one state and one parent later moves to another, the parties subsequently will often question where a future modification of custody case should be filed.
Fortunately, that question has largely been answered with the Uniform Child Custody Jurisdiction and Enforcement Act ("UCCJEA"). This set of statutes, which generally has been adopted throughout the United States, provides a framework for state courts to determine under what circumstances they have jurisdiction to enter custody orders. The Act generally provides that a child’s home state (where the child has lived for the last six months) has "subject matter jurisdiction," i.e., the authority, to resolve initial custody disputes. This generally occurs in the context of the divorce. After the entry of an initial order, that state retains "exclusive continuing jurisdiction" to address all further changes of custody, until both parents and the child no longer reside in that state.
A recent Georgia Court of Appeals case provides additional guidance on this issue. In Delgado v. Combs, the Court reversed a Georgia trial court’s refusal to set aside its modification of an initial custody order entered by a Kansas court. In that particular case, the parties had been divorced in Kansas, and the father subsequently moved Georgia. The initial order gave primary physical custody to the mother and also established a visitation schedule for the father. The original custody order was modified about six months later and provided that physical custody would be transferred to the father for the upcoming school year. About two years after the divorce, the father filed a petition in Georgia to permanently modify custody and visitation. After some procedural "wrangling," the Georgia Court permanently modified the Kansas custody order and gave sole physical and legal custody of the child to the father and limited the mother’s visitation to only that approved by the father.
The operative issue here was that the Georgia Court undertook jurisdiction of the custody case initially under the temporary emergency jurisdiction provision of the UCCJEA and later found that the mother was not a resident of Kansas (remember that the father had already left that state and moved Georgia). After reaching this conclusion, the trial court also concluded that it was a more convenient forum for the custody case, and it thereafter entered its final order. The mother then filed a motion to set aside the trial court’s order. That motion was denied.
The Court of Appeals reversed, finding that the trial court erred in determining that it had subject matter jurisdiction over the case. The Court ruled that there was no evidence that the mother was not residing in Kansas at the time the case was filed, that the trial court had erred in finding so, and that it had erred in concluding that it had subject matter jurisdiction over the custody dispute.
Custody disputes are extremely complicated, and there is no question that experienced legal assistance will be invaluable in obtain the best outcome for any particular set of circumstances. If you are considering a change of custody action, or even an initial custody action, our firm can provide the assistance that you need to assure you the best chance of success. Please call our office for assistance.
Wednesday, 08 February 2012 17:39 Written by David Canale
Georgia child support law requires that trial courts make specific findings of fact when establishing or modifying child support obligations. O.C.G.A. § 19-6-15 makes such findings mandatory. The general practice is for the court to make specific findings as to the parents’ respective incomes, the cost for health insurance and child care, and any deviations that are permitted under the guidelines. These amounts are then put into the child support worksheet, which caclulates the final child support award.
However, it is quite common for Georgia appellate courts to hear cases involving incomplete trial court child support orders. In all cases where the trial court fails to make the appropriate findings of fact, Georgia appellate courts will reverse the court’s decision and remand the case back to the trial court with direction to make the appropriate findings of fact and include them in its final order. For a recent case where this occurred, see the Georgia Court of Appeals opinion in Johnson v. Ware, Opinion No. A11A1559.
To avoid having this problem, a parent in a case either establishing or modifying a child support order must make sure that his counsel is experienced in the area of family law and child support obligations. Although I have no evidence to back this up, my hunch is that the attorneys whose cases end up being reversed and remanded on appeal for not including the findings of fact probably do not practice much family law and are not familiar with the requirement that the final order include these findings of fact. This provision is not entirely new, but it is one that must be followed to avoid future problems with an order.
Our firm has experienced family law attorneys who can help you with your child support case. It is very important that you pick the right attorney to represent you. We can help you. Please call our office for assistance.
Monday, 30 January 2012 18:58 Written by David Canale
Under Georgia law, child support modifications may only be filed by a party every two years, except where the modification is based upon an involuntary loss of income. The two-year rule applies even where cases are dismissed on procedural grounds.
In the recent Georgia case of Bagwell v. Bagwell, the Supreme Court reversed a trial court’s refusal to dismiss a second child support modification, where the first case had been dismissed for failure to respond to discovery. In that case, a noncustodial father obligated to pay child support under an order from his divorce case filed a modification, alleging a substantial decrease in his income and financial status since the divorce. His ex-wife had moved for sanctions against him, for failure to respond to her discovery requests. The trial court, as a sanction for this failure to respond, dismissed the petition for modification, finding that the father had completely failed and refused to respond to the mother’s discovery and that the failure to respond was "willful and intentional."
Only 14 days later, the father again filed a modification petition, on the same grounds as the first petition. His ex-wife moved to dismiss the petition on the grounds that it was time-barred under O.C.G.A. § 19-6-15(k)(2), which prohibits the filing of a modification petition within two years after the date of the final order on a previous petition. The father argued that the dismissal of the first modification petition was not an "adjudication on the merits," but rather a discovery sanction imposed by the court for his failure to respond to discovery. The Supreme Court disagreed, finding that the dismissal of the first modification was a "final order" under the terms of § 19-6-15. Therefore, the second petition, which was filed well within the two-year time period, was barred, and the trial court aired in failing to grant the mother’s motion to dismiss the case.
What does this mean for a child support obligor who desires to modify a child support obligation? Clearly, timing is an issue. The discovery sanction issued by the trial court was ultimately a key issue in this case. If the first case had not been dismissed, then the father’s child support obligation would have been heard by the court. The problem here was not that the second case was filed, but that it had to be filed because of the outcome of the first case. And the outcome of the first case was determined by the father’s failure to respond to what was likely a standard discovery request.
The discovery process in a child support case, though time-consuming, nonetheless serves an important function. The exchange financial information provides a basis for the court to determine whether a modification is appropriate. A party’s failure to participate in that process can ultimately doom what is otherwise a valid claim. If you are considering a child support modification, you owe it to yourself to discuss your case with an experienced family law attorney who can provide you guidance and answer important questions about your circumstances. When there is "money" on the line, a prospective litigant should be very cautious about trying to go it alone and represent himself. Child support modifications are very technical in nature, and although a party may always represent himself, the better course of action is to have an experienced family law attorney on your side.
Please call our office to speak with an experienced family law attorney. We are waiting to help you.
Wednesday, 25 January 2012 20:32 Written by David Canale
A common question to family law attorneys is what are the rights of grandparents under Georgia law to petition a court to visit with their grandchildren. These scenarios often arise when the parents of the children are either unmarried or the divorce, and the custodial parent restricts contact between the children and the grandparents. Georgia law offers several remedies to grandparents in these situations.
O.C.G.A. § 19-7-3(b) allows any grandparent to file an original action for visitation rights to minor child or to intervene in and seek visitation rights in any pending action with the custody of the child is at issue. The latter applies to divorce cases, custody modifications, and termination of parental rights actions. It also applies to adoptions where the adopted child has been adopted by a blood relative or by a stepparent. The grandparent must show by clear and convincing evidence that the health or welfare of the child will be harmed unless such visitation is granted and that the best interest of the child would be served by such visitation.
Grandparent visitation rights cases are complicated and certainly require the assistance of an experienced family law attorney. Our firm has experience in these cases and can provide you the assistance and expertise needed to obtain a favorable outcome. Please call our office for assistance.
Wednesday, 25 January 2012 18:12 Written by David Canale
Legislation recently introduced into the Georgia House of Representatives (HB 799) would allow the expungement of DUI convictions after the expiration of five years, so long as the person convicted had no other driving offenses within those five years.
Rep. Rusty Kidd, R-Milledgeville, said some people who make the mistake of driving drunk once have to live with a lifetime of problems, such as being disqualified from jobs or scholarships. "If you have a DUI, it never comes off your record," Kidd said. His House Bill 799 would give people "who keep their nose clean for five years" a second chance, he said.
You can read the article at this link.
We often receive inquiries in our office from people who incorrectly believe that a DUI conviction is automatically expunged after a certain period of time. There currently is no provision under Georgia law that allows this. If you support this legislation, then you may wish to contact your Georgia Representative to tell them that you do.
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