There are lots of cases in Georgia that say that custody “automatically” goes to the surviving parent when the custodial parent dies.  The judge cannot award custody to someone else without good reason.  Examples of good reason include abandonment, cruel treatment, termination of parental rights, or present unfitness of the surviving parent.  The cases say that a clear and strong case must be made to deprive the surviving parent of custody.

What if the dying custodial parent gives the child to third parties while still alive?  Case precedent says the surviving parent still has priority for custody upon the death of the custodial parent.   Unfitness must be established by clear and satisfactory proof, not merely that the child would have better financial, educational, or even moral advantages with third party custodian.  Would the children suffer physical or emotional harm if custody remained with the surviving parent?

What should you do if you are terminally ill and know that your child’s other parent is unfit to have custody if you die?  The best solution would be to file a petition with the court prior to your death in order to allow the court to consider the present unfitness of the parent likely to survive – and ask the court to award custody (perhaps joint custody pending your death) to a relative or other third party based on clear and convincing evidence that the other parent is not fit.  Otherwise, upon your death, the surviving parent would be the legal custodian by operation of law.

Is there anything else you can do to prevent this scenario from happening?  A recent Georgia Supreme Court case suggests a course of action.  Entrekin v. Friedman, 294 Ga. 429, decided January 21, 2014,  involved a situation where the father died, and members of his family took custody of the child and refused to give the child to the mother.  The mother brought a “habeas corpus” action in court asking for an order that the relative turn the child over to her.  Meanwhile, the father’s sister filed her own petition for custody of the child.  The trial judge denied the mom’s habeas corpus petition and awarded temporary custody of the minor child to the paternal aunt.  The mother appealed.

The Georgia Supreme Court affirmed the trial judge’s decision based on an interesting factual twist.  The Supreme Court agreed that the mother was entitled – at least presumptively – to custody of the child following the death of her former husband.  However, the existing custody order for the child awarded physical custody of the child to the father, and the existing parenting plan specifically addressed the possibility that the father might not survive until the child was grown.  The parenting plan entered by the parties as part of their divorce expressed the “desire of the parents” that the paternal aunt of the child have physical custody in the event the father died.  That parenting plan had been approved by the Court and made a part of the final decree of divorce between the parties!

The presumption that a surviving parent is entitled to custody can be overcome by clear and convincing evidence that the surviving parent is unfit.  In the Entrekin case, the trial court found that the mother was unfit to be the child’s custodian.  The evidence was that the mom had struggled with alcohol and prescription drug addiction, had been convicted of DUI, had endangered children by driving under the influence, had violated her probation, and had recently taken prescription pain medication without telling her doctor she was a recovering addict. Under the divorce parenting plan, she had supervised visitation.  Even though the mom had access to the child’s school and medical records, she was unaware of the child’s special needs.  This was enough to establish clear and convincing evidence of her present unfitness to have custody.

What ideas can we take from this case?  First, if you are getting a divorce from someone who had serious addiction issues or any other issues that would warrant supervised visitation, consider a provision for third party custody in the event of your death as part of your divorce parenting plan.  (Even if you are perfectly healthy.)  If the plan is approved by the court and made the order of the court at the time of the divorce, that order would give the third party some legal standing to take immediate custody in the event of your untimely death.

If you are terminally ill, consider addressing the custody issue while you are still alive.  Even if you are too sick to go to Court, a guardian ad litem could be appointed for your child, and the third party relative could file the petition.

I have always advised my clients who have serious concerns about what happens to their child if they die to create an “if I die” packet of information for their relatives.  This packet could include copies of important evidence that you have collected over the years about the other parent’s unfitness.  This would give the third party hoping to be awarded custody a starting place for a court action.  Criminal information, facebook postings, recordings, correspondence, e-mails, and anything else you consider relevant could be included in your packet.  Think about what you know that would be helpful.  Think about who else knows this information and include names and contact information of witnesses.  For more information see here.

Finally, if you have relatives that you feel strongly should NEVER have custody of your child or be left alone with your child under any circumstances, you should address that also.  Last Wills and Testament often include provisions nominating a guardian for minor children in the event you are not survived by the other parent.  You can also specifically state in your Last Will and Testament that under no circumstances should a certain relative be awarded custody of your child or left alone with your child.  If there are unfitness reasons for your views, you may want to create a package of information as suggested in the paragraph just above detailing why.  The reason could be concerns about child abuse, sexual abuse, emotional abuse, addiction, or any other reason important to you.

These ideas are offered to provoke thought for those who have concerns.  Your specific situation should be addressed with an experienced lawyer who does family law and estate planning, either at Hindson & Melton or the lawyer of your choosing.  Thanks.

© Karen S. Hindson, Dunwoody law firm Hindson and Melton LLC, June 21, 2014

ALSO SEE:

• GEORGIA CHILD CUSTODY
• GRANDPARENT VISITATION RIGHTS UPDATE
• CUSTODY BATTLE BETWEEN GRANDMOTHER AND AUNT

What is Intimate Partner Violence?

Intimate Partner Violence (IPV) is defined in the 2009 protocol as “a pattern of coercive behavior including physical, sexual, financial, and psychological abuse of one partner by the other partner.  This includes the establishment of power and control by one partner over another in the context of a current or past intimate or romantic relationship.”  Often, victims are embarrassed to admit the truth to friends or family. This is especially true if the victim is not willing to separate from the offender or call law enforcement.  The victim may be afraid of threats made by the abuser, the victim may believe the abuser’s promises to change, or the victim may be financially dependent on the abuser and see no way out.

Mandatory Reporters

Georgia law makes physicians, nurses, security personnel, and others involved in patient care at a medical facility “mandatory reporters”.    If a mandatory reporter has cause to believe that a patient’s injury or injuries are not accidental, they are required to notify local law enforcement.  The Georgia statute that establishes the duty to report, OCGA §31-7-9,  also gives the reporter immunity from liability for reporting.

Legal Definition of Family Violence

How does Georgia law define family violence?  It goes beyond violence between intimate partners or spouses.  The law is OCGA§19-3-1; it includes past or  present spouses, parents of the same child, parents and children, foster parents and children, stepparents and children, or other persons living or formerly living in the same household.  Any felony, simple battery, simple assault, battery or assault, stalking, criminal damage to property, unlawful restraint, or criminal trespass can constitute family violence and is a crime.

Leaving a violent relationship can be a difficult and dangerous process.  Safety planning is key and resources are available to help.

Georgia Commission on Family Violence Screening Protocol for Medical Facilities

Georgia intimate partner violence screening protocol guidelines include:

• an injury not likely to be caused by the event reported
• an injury occurring during pregnancy
• seeking treatment for an injury one or two days after the incident
• minimizing the seriousness or frequency of injury
• multiple injuries in various stages of healing
• repeated visits to medical providers or emergency  departments, especially if the severity of injury is increasing
• attempted suicide, drug overdose, or self-mutilation
• an overly aggressive or attentive partner
• undetermined sources of medical or psychological complaints, unexplained illnesses or pains, sleep disorders or lack of appetite.

Family Violence Hotline

There is a 24 hour hotline for emergency shelter or information on family violence, dial 1-800-799-SAFE.

Your familiarity with the indicators of intimate partner violence could save a life.  Know the signs.

© Karen S. Hindson, Hindson & Melton LLC, November 8, 2014

ALSO SEE:

• Custody When One Parent Dies
• Georgia Separation versus Divorce
• Cognitive Behavioral Therapy

Child abuse happens every minute of every day.  In fact, we know that it happens every ten seconds.  We have seen some very shocking reports in the past few weeks of child abuse and even children dying.  I’ve worked for the prevention of child abuse for many years and the fact that children are dying at the hands of those with responsibility for their care doesn’t surprise me anymore.  What still does surprise me, and appall me, is that witnesses who have reasonable cause to know that a child is being harmed, do nothing.  Heads are turned, eyes closed, and excuses are made.  “Oh, I don’t think it’s really abuse. I’m sure I don’t know the whole story.”  The result? The child is injured, the perpetrator is not identified, much less punished, and then the perpetrator is free to hurt the child again.

Georgia law requires child abuse reports to be made within 24 hours of when you have reasonable cause to believe that abuse has or is occurring.  You may report by telephone.  Simply dial 911 and you’ll be connected to the local police.  Your report will be taken and an investigation begins.  If you don’t want to call 911, call the police department or the sheriff’s department.

Churches are involved with children and youth all the time.  Volunteers, workers, teachers, counselors, and others involved at the church are not excused from making reports.  Don’t let yourself believe that someone else will call.  Do what is necessary to protect that child in front of you.  Call 911. Report to the police.  Tell the pastor. Your church is a Safe Sanctuaries church and you know what to do.  Make the report.  Protect the child.

I’m sure I sound angry.  I won’t deny it.  In our world, I think it is horrible that children are abused and injured by those who are legally and morally obligated to love and care for them.  Right now, I think it is horrible that so many cases are making news in Georgia, North Carolina, and other states, not just because children have been abused but because witnesses knew and failed to report.  How can it possibly be reasonable to say that we were aware the child was being starved, or the child was being chained up, or the child was being withheld from school, but we didn’t know what to do??!!

When you have reasonable cause to believe that child abuse has occurred, REPORT IT. CALL 911.  In Georgia and every other state, when you make that call, you’ve done a right and good thing.  For more information go to www.SafeSanctuariesConsulting.com.

Click here to view the video.

If your church has three regular employees – full-time or part-time – in any combination, then your church needs worker’s compensation insurance.  This type of insurance provides coverages for injuries or illnesses caused by a job-related event or accident occurring on the church’s property, and any such event or accident that occurs elsewhere while the employee is on church business or church “time”.  The clergy who are the church’s leaders are counted in the three employee minimum, along with other employees.

Securing worker’s compensation insurance is the first step in risk managment planning for dealing with employee injuries or accidents.  The next step for the church is to create and implement their policy for processing a worker’s compensation claim.  The policy must be communicated to all employees.  Specifically, the policy and the steps in the process must be posted in an area commonly used by employees.

Since it seems to come as a big surprise to many churches that worker’s compensation insurance is required, I would guess that it is also surprising to learn that failure to provide this coverage is actually a criminal misdemeanor in Georgia.  Such a charge is punishable by up to one year in jail and up to $10,000.00 in fines.  Many churches in Georgia are unincorporated volunteer associations. In the event of this type of criminal charge, the prosecution could be brought against the members of the church trustees.  As frightening as this may sound, it is not the problem that worries me the most.

If a church fails to provide and maintain worker’s compensation insurance, and  the church secretary (or pastor, or custodian, or cook) sustains a major injury at work, then the congregation will be faced with potentially devastating financial consequences.  This is a scenario that could lead to the end of the church’s ministry.  As a consultant to many churches, my goal is to advise you in the best ways to keep the ministry going  and growing.  Worker’s compensation insurance is one very important aspect of thorough church risk managment planning.

Advise your church to secure worker’s compensation insurance.  Don’t delay.  Churches need worker’s compensation insurance!

Ten Ways to Love - from First United Methodist Church Mishawaka, via my sister-in-law.

Karen S. Hindson,  Hindson & Melton LLC  May 1, 2013

1. The law defines “Child service organization personnel” as persons employed by or volunteering at a business or an organization, whether public, private, for profit, not for profit, or voluntary, that provides care, treatment, education, training, supervision, coaching, counseling, recreational programs, or shelter to children”.  Then, the law states that Child service organization personnel, “having reasonable cause to believe that a child has been abused shall report or cause reports of that abuse to be made a provided in this Code section.”  Therefore, under our Georgia law, your volunteers and staff members in ministries with children and youth are mandatory of child abuse.

2. The law requires that reports of child abuse be made “no later than 24 yours from the time there is reasonable cause to believe a child has been abused, by telephone or otherwise and followed by a report in writing, if requested, toa child welfare agency providing protective services, as designated by the Department of Human Services, or, in the absence of such agency, to an apporpriate police authority or district attorney.”  Your ministry leaders must know the DFACS office or the sheriff’s office contact information so that the appropriate reports can be made with the law’s time limits.

3. The law makes it clear that clergy must report child abuse. The only circumstance in which clergy may not report child abuse is the situation where a clergy person’s only knowledge of the abuse is a confession by the perpetrator which is “required to be kept confidential under church doctrine or practice.”  The 2012 Book of Discipline of the United Methodist Church, Paragraph 341.5 states, “All clergy of The United Methodist Church are charged to maintain all confidences inviolate, including confessional confidences, except in the cases of suspected child abuse or neglect or in cases whre mandatory reporting is required by civil law.”   This illustrates that the United Methodist doctrine does not require clergy to keep knowledge of child abuse confidential.  Other denominations may have slightly different provisions.  In light of your denomination’s doctrine, it is important to review the Georgia Child Abuse Reporting Statute to be sure your staff and volunteers understand the responsibilities and requirements for reporting abuse.

You can find the complete text of the Georgia child abuse reporting statute in 2012 House Bill 1176, portions of which are quoted above, posted online at www.legis.ga.gov.  For additional information, contact Joy Melton by email: joy@hindosnmelton.com