The recent case of Ertter v. Dunbar, 734 S.E.2d 403 (Nov. 19, 2012) involves a Georgia custody battle between grandmother and aunt in juvenile court and superior court of Cobb County Georgia.  The grandmother prevailed in the juvenile court, the maternal aunt and uncle prevailed in superior court, the grandmother prevailed at the Georgia Court of Appeals, and the aunt and uncle prevailed at the Georgia Supreme Court!  The important issue in the case is which Georgia court has jurisdiction (authority) to make the custody decision regarding this young child.

In June 2008 the parents of a 2 year old girl died, and the maternal grandmother filed a “deprivation” action in Cobb County Georgia Juvenile Court seeking custody of the minor child.  The Juvenile Court awarded temporary custody to the grandmother.   Subsequently, in October 2008, the juvenile court gave the maternal grandmother custody of the child until she turns eighteen years of age under the deprivation statute.

Meanwhile, the maternal aunt and uncle filed in the Cobb County Superior Court for permanent custody of the minor child in August 2008.  After the juvenile court awarded long term custody to the grandmother in October, the aunt and uncle amended their Superior Court petition to seek a change of custody from the grandmother.  In June 2010, the Superior Court found it was in the child’s best interest to give permanent custody to the aunt and uncle rather than the grandmother.

On appeal, the Georgia Court of Appeals overturned the Superior Court decision, citing the doctrine of priority jurisdiction, and giving priority to the Juvenile Court ruling.  (This doctrine provides that where courts have concurrent jurisdiction in a matter, the first court to act acquires exclusive jurisdiction to proceed.)   The Court of Appeals decided that the juvenile court order first giving the grandmother custody prevented the superior court from acting to award permanent custody to the aunt and uncle.

The Georgia Supreme Court agreed to hear the case on appeal from the Georgia Court of Appeals.  The Georgia Supreme Court reversed the Court of Appeals decision, finding that the doctrine of priority jurisdiction did not apply in the case because the juvenile court and superior court did not have “concurrent jurisdiction” in the matter (did not both have jurisdiction to hear the case).  The Georgia Supreme Court said the juvenile court does not have jurisdiction over petitions for permanent custody of a child.

The background facts of this specific case are unknown to the author of this blog; however it does not go unnoticed that the people fighting over custody of this little girl from 2008 to 2013 are mother and daughter – maternal aunt and maternal grandmother of the child.  Such fact gives rise to the question of whether a custody battle is really in the best interest of the child and whether it can be avoided in good conscience.  Except in extreme circumstances, extended family members should be able to work together to craft an arrangement to cooperatively provide the best possible care and custody for a child.  Sometimes, that is not possible, and a court must make the decision between competing relatives.  In such cases, you want to be in the right court to begin with so you get a binding decision.

Which Georgia court has jurisdiction over child custody cases such as this?

Rule #1: If a divorce action between the parents is pending and a child is alleged to be “deprived”, the juvenile court and superior court have concurrent jurisdiction over the temporary custody of the children.

What is a “deprived child”?

A “deprived child” is one who:

(a) Is without proper parental care or control, subsistence, education as required by law, or other care or control necessary for the child’s physical, mental, or emotional health or morals;

(b) Has been placed for care or adoption in violation of law;

(c) Has been abandoned by his or her parents or other legal custodian; or

(d) Is without a parent, guardian, or custodian.      O.C.G.A. § 15-11-28(8).

Rule #2: The juvenile court has exclusive jurisdiction over a deprivation action in which there is a bona fide allegation that the child is deprived.  OCGA § 15-11-28(a)(1)(C).  (Note that Rule #1 would only apply if there is a divorce action pending between the parents).

Rule #3: The juvenile court has exclusive jurisdiction for most cases involving the termination of parental rights.   Exception:  The Superior Court has concurrent jurisdiction to terminate parents rights when the termination is in connection with an adoption proceeding.  OCGA § 15-11-28(a)(2)(C).

Rule #4:  Sometimes the Superior Court issues an order transferring a legitimation or custody and support petition to juvenile court for decision; in that case the juvenile court has concurrent jurisdiction with the Superior Court to hear the case.  OCGA §§ 15-11-28(c)(1), (e)(1).

Rule #5: The juvenile court may award temporary custody of a child as part of a deprivation action in which they have exclusive jurisdiction; however the juvenile court does not have authority to award permanent custody without a transfer order from superior court.  OCGA § 15-11-28(c)(1).

Rule #6: The juvenile court has authority to place the child in the custody of a willing and qualified realtive until the child’s eighteenth birthday, if the juvenile court finds that reasonable efforts to reunify the deprived child would be detrimental to the child and that it is not in the child’s best interest to refer the case for termination of parental rights and adoption.  OCGA § 15-11-58(i)(1)(A).  This long-term arrangement could be modified by the Court before the child is eighteen, and such as case is subject to review every three years to make sure the person who has custody continues to be qualified to care for the child.  OCGA §§ 15-11-40; 15-11-58(i)(1)(D); 15-11-58(i)(2).

The bottom line:

It is apparent that these rules are complicated and full of exceptions.  However, it is critically important to the success of your case that you pursue your action in the correct court.  The rules above demonstrate that sometimes, you have a choice of whether to go to juvenile or superior court, and sometimes, there is only one option.

If you would like to consult with an attorney regarding a potential custody or deprivation case, contact Hindson & Melton LLC.  We will work with you to try to come up with a course of action designed to suit your family situation and the best interest of the child.

Karen S. Hindson, Hindson & Melton LLC, January 7, 2013