An example of a self-executing change of custody?   a provision stating if the primary custodian moves out of Fulton County, primary custody automatically changes to the other parent.

Parents have sometimes agreed to self-executing changes of custody trying to avoid potentially having to return to Court, but such provisions can backfire and must be avoided based on recent Georgia cases.

Karen S Hindson, Hindson & Melton LLC

ALSO SEE

• Georgia Custody Factors

For more information about how this development affects you, contact Hindson & Melton LLC.

Karen S Hindson, Hindson & Melton LLC

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

“The fundamental liberties protected by the Fourteenth Amendments Due Process Clause extend to certain personal choices central to individual dignity and autonomy, including intimate choices defining personal identity and beliefs…. History and tradition guide and discipline the inquiry but do not set its outer boundaries.”[1]

In 1967 the Supreme Court invalidated laws prohibiting interracial marriage (Loving v. Virginia)[2], and twenty years later the high court held that prisoners could not be denied the right to marry (Turner v. Safley[3]).

In 2015 the Supreme Court’s Obergefell v. Hodges decision identifies four key principles and traditions to support marriage as a fundamental liberty of same-sex couples:

• the right to personal choice regarding marriage is inherent in the concept of individual autonomy. Decisions about marriage are among the most intimate that an individual can make, and this is true for all persons, whatever their sexual orientation.
• the right to marry is fundamental because it supports a two-person union unlike any other in its importance to the committed individuals. Same-sex couples have the same right as opposite-sex couples to enjoy intimate association.
• protecting the right to marry safeguards children and families and thus draws meaning from related rights of childrearing, procreation, and education. Without the recognition, stability, and predictability marriage offers, children suffer the stigma of knowing their families are somehow lesser. They also suffer the significant material costs of being raised by unmarried parents, relegated to a more difficult and uncertain family life.
• marriage is a keystone of the Nation’s social order. There is no difference between same- and opposite-sex couples with respect to this principle, yet same-sex couples are denied the constellation of benefits that the States have linked to marriage and are consigned to an instability many opposite-sex couples would find intolerable.

“The limitation of marriage to opposite-sex couples may long have seemed natural and just, but its inconsistency with the central meaning of the fundamental right to marry is now manifest.”

The Court looks to the Fourteenth Amendment’s equal protection clause and the due process clause. Some rights are implicit in liberty; others are secured by equal protection of the law.

The right to marry is a fundamental right inherent in the liberty of the person Same-sex couples may exercise the fundamental right to marry. “While the Constitution contemplates that democracy is the appropriate process for change, individuals who are harmed need not await legislative action before asserting a fundamental right.”

Prior to the Obergefell decision, Georgia’s constitution and statutes prohibited same-sex marriage and prohibited recognition of same-sex marriages formed in other states.  Georgia’s courts, legislature, and local governments are now adapting to the new legal landscape.  Stay tuned.

Endnotes:

Read the entire Obergefell v. Hodges decision at 135 S. Ct. 2584 (U.S. 2015)

[1] Quoted passages within this article are from the Obergefell decision as published.

[2] 388 U.S. 1 (U.S. 1967)

[3] 482 U.S. 78, 95, (U.S. 1987)

© Karen S. Hindson, Hindson & Melton LLC

Did your children attend private school during the marriage?  Your Atlanta divorce lawyer will ask you this question, because if your children have attended private school throughout their education, it is more likely that a judge will be sympathetic to their continuing in private school after divorce.

If your child is currently in private school, what is the reason he or she was enrolled?   How is the child doing in the current school environment?

Will it create a financial hardship for the child to attend private school?

Which parent is authorized to make final educational decisions under the Parenting Plan?  The parent  with custody, or the parent with final decision-making authority for education, is authorized  to make the decision about private school versus public school.  But note that the issue of paying for private school is separate from the authority to make a decision to attend.   If the custodial parent expects the other parent to pay for part or all of private school tuition and expenses, that financial obligation must be explicitly spelled out in the court’s order or in the settlement agreement.  If as a custodial parent you agree for the other parent to have final decision-making regarding education, be certain that the other parent also has the obligation to pay for private school if he or she makes that choice.

Private school education and the right to make decisions about  it, and the responsibility to pay for it, can be included in the divorce Parenting Plan and child support terms of the divorce. Discuss your specific questions or concerns with your divorce lawyer.

© Karen Hindson, Hindson & Melton LLC – February 26, 2015

ALSO SEE:

• Parenting Plan
• Joint Custody
• Child Custody

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

This is a great horse.  I like the looks of his velvety coat, gentle eyes, and the contrasting color at the edge of his ears.   I like the carefree manner in which his mane blows in the breeze.  I like his confidence and apparent strength.  But I also like the fact that he isn’t too “alpha” to play nice with the other horses.  This horse will cross the pasture to greet me – whether or not I bring carrots.  He is accessible and friendly.  This is a really great horse.

   It occurs to me there is much I can learn from this horse.   Perhaps take care that my eyes remain gentle…when dealing with difficult people.  Perhaps exercise more patience…observing cues and absorbing information I otherwise miss.   I should definitely make it a practice to enjoy the breeze – just because it’s pleasant.  If I embrace the journey (across the pasture) to engage a client, opposing counsel, or the stranger at the fence, I won’t have regrets about  missed opportunity.  I’d do well to maintain my strength and confidence.

 With respect to divorce, it is helpful to check your perspective.   While you cannot control another’s words or actions, you can work on your response.  Tools are readily available to  help identify and change any negative “self talk” or thought patterns.   A positive outlook makes an enormous difference in your perception of your situation — and your ability to bring all of your skills and strengths to the table.  If you are considering divorce and are anxious, angry, obsessed, or generally miserable, consider a few sessions of cognitive behavioral therapy.  

It also helps to find a great horse.

© Karen S. Hindson, Hindson & Melton LLC    July 4, 2014

ALSO SEE:

• DIVORCE COGNITIVE BEHAVIORAL THERAPY
• BASKETBALL, DIVORCE, AND MAGICAL THINKING
• GEORGIA CHILD CUSTODY – BEST INTEREST OF THE CHILD    

The Georgia Supreme Court, in the case of Worley v. Whiddon, 261 Ga. 218, confirmed that since visitation is part of custody, the wishes of a 14 year old regarding visitation are important. But the trial court still has authority to set visitation rights based on the best interests of the child, including not only the child’s wishes but also other factors.

Court has supervisory power over child’s decision

The court essentially has supervisory power over a 14 year old’s decision not to visit the noncustodial parent. This supervisory power protects both the child and the noncustodial parent from coercion by the custodial parent.

As a practical matter, if you have a child over age 14 who wants not to visit the noncustodial parent, you should file a petition to modify visitation if you support the child’s decision. Otherwise, you could be subject to a contempt action regarding visitation.

If you are a noncustodial parent whose child does not want to visit you, your course of action may depend on whether you believe the child is making an independent judgment or acting under coercive influence of the custodial parent. Counseling involving the child and the noncustodial parent can be of assistance in navigating conflict that interferes with positive visitation experiences. Optimally, the parties and the child together decide on terms of a modification that takes the child’s wishes into consideration and continues contact with the noncustodial parent.

Parents who rigidly enforce their schedule and other “rights” without consideration of their child’s wishes or feelings are making a mistake. As a child nears adulthood, each parent must begin to navigate their relationship with their child independently of the other parent and the court’s enforcement powers.

Hindson and Melton LLC can assist you in evaluating your best course of action. We represent both mothers and fathers.

© Karen S. Hindson, Hindson & Melton LLC February  4, 2014

ALSO SEE:

• CHILD SUPPORT MODIFICATION AND CONTEMPT OF COURT
• CUSTODY ELECTION 14 YEAR OLD
• CUSTODY ELECTION 14 YEAR OLD – PARENTING PLANS

O.C.G.A. § 19-9-6 includes the following definitions regarding joint custody:

“Joint custody” means joint legal custody, joint physical custody, or both joint legal custody and joint physical custody. In making an order for joint custody, the judge may order joint legal custody without ordering joint physical custody.

“Joint legal custody” means both parents have equal rights and responsibilities for major decisions concerning the child, including the child’s education, health care, extracurricular activities, and religious training; provided, however, that the judge may designate one parent to have sole power to make certain decisions while both parents retain equal rights and responsibilities for other decisions.

“Joint physical custody” means that physical custody is shared by the parents in such a way as to assure the child of substantially equal time and contact with both parents.

“Sole custody” means a person, including, but not limited to, a parent, has been awarded permanent custody of a child by a court order. Unless otherwise provided by court order, the person awarded sole custody of a child shall have the rights and responsibilities for major decisions concerning the child, including the child’s education, health care, extracurricular activities, and religious training, and the noncustodial parent shall have the right to visitation or parenting time. A person who has not been awarded custody of a child by court order shall not be considered as the sole legal custodian while exercising visitation rights or parenting time.”

Frequently, agreements between parents provide for joint legal custody with one party being the primary physical custodian of the children. One parent may have final decision-making authority for all issues concerning the children, or the decision-making can be divided with each parent having final authority over different areas (such as education, health care, extracurricular activities, or religious upbringing).

Who decides custody issues?

The decision of who will have custody can be made in several ways:

• by the parents as a result of their discussions, or
• by the parents with the help of their lawyers, or
• by the parents with the help of a mediator (who has no authority to make a decision), with or without attorneys participating, or
• by the parents agreeing to binding arbitration on child custody and related matters, or
• by the judge after a hearing or trial.

Many law firms, including Hindson & Melton LLC, will work collaboratively to assist parties seeking amicable custody agreements that are in the children’s best interests. For more information, or to discuss your Georgia child custody questions, contact Atlanta area lawyers Hindson and Melton LLC.

© Karen S. Hindson, Hindson & Melton, LLC   January 22, 2014

ALSO SEE:

• PARENTING PLAN REQUIRED FOR ALL GEORGIA CUSTODY CASES
• COLLABORATIVE DIVORCE
• DIVORCE COGNITIVE BEHAVIORAL THERAPY

Parenting plan contents

The Georgia legislature has specified what must be included in a parenting plan. O.C.G.A. § 19-9-1(b)(2) includes the following requirements:

“Unless otherwise ordered by the judge, or agreed upon by the parties, a parenting plan shall include, but not be limited to:
(A) Where and when a child will be in each parent’s physical care, designating where the child will spend each day of the year;
(B) How holidays, birthdays, vacations, school breaks, and other special occasions will be spent with each parent including the time of day that each event will begin and end;
(C) Transportation arrangements including how the child will be exchanged between the parents, the location of the exchange, how the transportation costs will be paid, and any other matter relating to the child spending time with each parent;
(D) Whether supervision will be needed for any parenting time and, if so, the particulars of the supervision;
(E) An allocation of decision-making authority to one or both of the parents with regard to the child’s education, health, extracurricular activities, and religious upbringing, and if the parents agree the matters should be jointly decided, how to resolve a situation in which the parents disagree on resolution;
(F) What, if any, limitations will exist while one parent has physical custody of the child in terms of the other parent contacting the child and the other parent’s right to access education, health, extracurricular activity, and religious information regarding the child; and
(G) If a military parent is a party in the case:
(i) How to manage the child’s transition into temporary physical custody to a nondeploying parent if a military parent is deployed;
(ii) The manner in which the child will maintain continuing contact with a deployed parent;
(iii) How a deployed parent’s parenting time may be delegated to his or her extended family;
(iv) How the parenting plan will be resumed once the deployed parent returns from deployment; and
(v) How divisions (i) through (iv) of this subparagraph serve the best interest of the child.”

Parenting plans are often developed by the parties and their lawyers at mediation. Sometimes the parties are able to agree on all of the essential terms in discussions between themselves. Our firm can provide sample plans to guide your discussions. We can also offer suggestions to address any specific issues or concerns you may have to protect your child’s best interest.

© Karen S. Hindson, Hindson & Melton LLC.   January 12, 2014