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General Family Law

Does a Parent Have to Be Found Unfit for a Grandparent to Be Awarded Custody?

Wednesday, November 11th, 2015

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In Georgia, the law presumes that it is in the best interest of a child for custody to be awarded to the child’s parent or parents.  However, this presumption may be overcome by a showing that an award of custody to certain third-party relatives would be in the best interest of the child.  But does this mean that a grandparent seeking custody will have to show that the child’s parents are unfit?  The Georgia Court of Appeals recently reconfirmed previous rulings on this issue in the case of Brawner v. Miller, A15A1063, October 22, 2015, in which it held, “a trial court need not explicitly determine that the parent seeking custody is unfit.  Rather, the court is instead required to determine that the third-party relative has established by clear and convincing evidence that awarding custody to the parent would cause either physical harm or significant, long-term emotional harm to the child.”

In the Brawner case, two children were born to unmarried parents.  The parents lived together for the first few years of the children’s lives, but separated when the oldest child was approximately four years old and the younger child was approximately two.  After the parties separated, the mother moved in with her father, the children’s grandfather, and lived primarily with him for the next seven years.  The father of the children had only sporadic involvement in the children’s lives during this time, despite the fact that he lived only five blocks away from the mother.  The father’s child support payments to the mother were also inconsistent.

When the oldest child was ten years old, the mother was tragically murdered.  Shortly after the mother’s death, the father filed a petition with the court seeking to legitimate the children and have custody of them awarded to him.  The children’s paternal grandfather, with whom they had lived most of their lives, filed a petition to intervene and have custody of the children awarded to him.  After a hearing at which the father’s parents, as well as members of the deceased mother’s family testified, the court granted the father’s petition to legitimate the children, but awarded custody of the children to the grandfather with the father having visitation rights.

The father appealed and argued that the trial court should not have awarded custody of the children to the grandfather because the court did not find the father to be an unfit parent.  The Appellate Court found that it was not necessary for the trial court to find the father to be unfit.  The trial court’s ruling was upheld based on its finding that awarding custody to the father would cause significant, long-term emotional harm to the children.

In upholding the trial court’s findings, the Appellate Court noted “most importantly … [the father] has interacted with the boys only sporadically since he and their mother separated, visiting them occasionally and attending only a few school events and extra-curricular activities despite living a mere five blocks away from [the mother].  As [the grandfather] testified, and the trial court reiterated, the boys are still struggling emotionally from the sudden and tragic loss of their mother.  And although they are beginning to heal from this severe emotional trauma, the healing process will undoubtedly be harmed if they are, at this point in time, uprooted from the only home they have ever known to live with a father who, while perhaps well-meaning, has yet to build a meaningful relationship with them.”

By: Margaret E. Simpson, Associate Attorney, Meriwether & Tharp, LLC

Obtaining a Same-Sex Marriage License in Georgia

Saturday, November 7th, 2015

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This summer, after the United States Supreme Court addressed the issue of gay marriage in the U.S. by ruling that same sex couples have the constitutionally protected right to marry in the historic case of Obergefell v. Hodges, 135 S. Ct. 2071 (2015), officials in states such as Alabama, Texas, Arkansas, Mississippi, Louisiana and Kentucky began to contemplate thwart the new law. In fact, over the last several months all eyes have been on Rowan County, Kentucky. Why? Because county clerk Kim Davis has notoriously defied a federal court’s order to begin issuing same sex marriage licenses in the county. Fortunately, now that at least some of Kim Davis’ deputy clerks are issuing marriage licenses to all eligible citizens, there is some resolution to the issue. But, the Kim Davis case may leave some with a few questions regarding how to obtain a marriage license in Georgia, and what to do if a Georgia clerk refuses to issue a marriage license according to law.

Although, as mentioned above, some southern states initially indicated an unwillingness to abide by the U.S. Supreme Court’s ruling, Georgia lawmakers made it clear from the beginning that Georgia would uphold the law. Thus, if you are a same sex couple seeking a marriage license here in Georgia, you should not encounter any obstacles. However, it you do please contact the presiding judge in the county where you are seeking the marriage license, your local law maker, or the Georgia Attorney General’s Office. But, let’s get to the basics – how to obtain a same sex marriage license in Georgia.

Well, simply put, same sex couples seeking marriage licenses here in Georgia must simply follow the same procedure as other couples to obtain a marriage license. First, if you or your future spouse are residents of Georgia, you can get a marriage license anywhere in the state. If neither of you are Georgia residents, you must apply for the license in the county where your marriage ceremony will be performed. Second, both you and your spouse must be 18 years of age or older. In certain circumstances though, those aged 16 and 17 may wed with the consent of a parent or guardian. Third, if the above requirements are met, you and your future spouse should visit the appropriate county’s probate court. Be sure to bring a valid form of identification, like a driver’s license, birth certificate, passport, or military ID, along with funds to pay the marriage license fee. Generally, the marriage license fee in Georgia is $56, but if you show proof that you completed a qualified premarital education program, the fee will be reduced to $16. Finally, you must have your marriage ceremony officiated by a judge, justice of the peace, licensed or ordained minister, clergyman, pastor or other religious leader. Additionally, your ceremony must be observed by at least two witnesses. For more information on how to obtain a marriage license here in Georgia, contact your local Probate Court see

Prenuptial Agreements for Same Sex Couples in Georgia

Saturday, November 7th, 2015

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Prior to U.S. Supreme Court’s Obergefell decision, which legalized same sex marriage throughout the United States, same sex marriage was not lawful in many states, including Georgia. Now that gay marriage is legal though out the U.S., many same sex couples in Georgia are considering marriage. Although divorce is likely the last thing gay couples consider when contemplating marriage, couples should strongly consider prenuptial agreements prior to marriage. Why? Well, prior to the Obergefell decision, same sex couples in long term, committed relationships often cohabited, commingled funds and assets and sought out other legal means to solidify and safeguard their relationship. Because certain rights and responsibilities automatically attach with marriage that may not have previously been discussed or considered, gay couples should consider entering into a prenuptial agreement to ensure both spouses have equal expectations and are protected in the unfortunate event of divorce.

For example, ante-nuptial agreements (commonly referred to as a prenuptial agreement or “prenups”) help couples determine how assets and debts will be divided upon divorce. Additionally, with a prenup a couple can determine upfront whether alimony will be awarded upon divorce, and if so, how much. Finally, because couples must disclose specifics about all assets or debts to be covered by the agreement, prenuptial agreements also help to maintain financial transparency between couples. To learn more about prenuptial agreements in Georgia, and how entering into a prenup may be beneficial for both you and your future spouse, see our article addressing Prenuptial and Postnuptial agreements in Georgia. If you have already decided that a prenup is right for you, contact our family law attorneys are Meriwether & Tharp today to get started.

When a Child Has Been Raised Primarily by a Grandparent, Can a Parent Be Awarded Custody?

Wednesday, November 4th, 2015

When a child is born to two people who are not ready to be parents, the grandparents often step in to help raise the child.  But what happens when a parent wants to have more of a role in the life of a child who has been primarily raised by a grandparent?  How would a court decide whether the child should remain with the grandparent or start living with the parent?  The Georgia Court of Appeals recently addressed this issue in the case of Bell v. Taylor, A15A1621, October 28, 2015 (Ga. App. 2015).

In that case, a child was born to unmarried parents in 2008.  In 2011, the parents consented to the child’s maternal grandmother being granted temporary guardianship of the child.  The father, who was 20 years old when the child was born, had little to no involvement in the child’s life for the first few years.  He acknowledged that, during that time he used drugs and alcohol and was “just young and wild and partied a lot.”  Eventually, as the father matured, he straightened out his life and wanted to be more involved in the life of his son.

In 2013, the father filed a petition seeking legitimation and custody of the child.   The maternal grandmother responded to the father’s petition, but the child’s mother did not.  The court granted legitimation and legally changed the child’s last name to the father’s last name.  The court also granted the father visitation with the child on a temporary basis.  The question for the court to decide at the final hearing was whether the child should continue to live with the grandmother or go and live primarily with the father.

At the final hearing the father’s parents testified that he had had problems when he was younger but that during the past two years he had been clean and sober, maintained a job, and had a stable home with a wife and two stepchildren.  A family friend testified that he had seen the father go from not being worth a “plug nickel” to being mature, grown up, in a good marriage, looking after his stepchildren, and able to provide a “solid life” for the child.

The child, who had just turned 6 years old at the time of the final hearing, had lived most of his life with the maternal grandmother.  The grandmother testified that the child had some difficulty when the father first got visitation rights, but that she encouraged the father to be involved in the child’s life and that eventually the visitation started “going pretty good.”  The grandmother presented witnesses who testified that the child was happy, well taken-care-of and doing great living with her and visiting with the father every other weekend.

After all of the evidence was presented, the judge said that he was confident that both parties could take good care of the child, but decided that it would be harmful to the child to remove him from the home of the grandmother where he had lived most of his life and awarded primary custody to the grandmother.

The father appealed the decision and argued that the judge had misapplied the law.  The legal standard for deciding custody actions between a parent and a grandparent is found at O.C.G.A. § 19-7-1 (b.1) which provides, in pertinent part:

There shall be a rebuttable presumption that it is in the best interest of the child or children for custody to be awarded to the parent or parents of such child or children, but this presumption may be overcome by a showing that an award of custody to such third party is in the best interest of the child or children. The sole issue for determination in any such case shall be what is in the best interest of the child or children.

To rebut the presumption set forth in O.C.G.A. § 19-7-1 (b.1), the third party must show that parental custody would cause physical or significant long-term emotional harm, not merely social or economic disadvantage.  Strickland v. Strickland, 330 Ga. App. 879 (2015); Clark v. Wade, 273 Ga. 587, 598 (2001); see also Harris v. Snelgrove, 290 Ga. 181, 182 (2011).  “[A] change in home and school will often be difficult for a child, but some level of stress and discomfort may be warranted when the goal is reunification of the child with the parent.” Clark v. Wade, supra at 598.

In determining whether reuniting a child to the parent would harm the child, the trial court must consider the following factors:

(1) who are the past and present caretakers of the child; (2) with whom has the child formed psychological bonds and how strong are those bonds; (3) have the competing parties evidenced interest in, and contact with, the child over time; and (4) does the child have unique medical or psychological needs that one party is better able to meet.

Clark v. Wade, supra at 598-599.

On appeal, the father argued that because the trial court did not specifically find that any physical or significant, long-term psychological harm would have resulted if the child were to live primarily with him, he should have been granted primary custody.  The appellate court agreed and held that “the type of harm noted by the trial court falls within that level of stress and discomfort that is an acceptable price for reuniting a child with a parent, and is insufficient to infringe the fiercely guarded right of a parent to have legal and physical custody of his or her child.”  The appellate court sent the case back to the trial court with the instruction to award custody to the father.

By: Margaret E. Simpson, Associate Attorney, Meriwether & Tharp, LLC

I’m Separated from My Spouse. Is It OK to Date?

Tuesday, October 27th, 2015

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Legally speaking, no it is absolutely not OK to date once you separate from your spouse in Georgia. Georgia divorce law does not recognize the concept of “legal separation” that some other states recognize. Thus, even if you have physically separated from your spouse and no longer desire to continue the marital relationship, you are still married according to Georgia law. Any extramarital relationship you engage in (separated or not) may be considered adultery during your divorce.

Legalities aside, if your divorce is not yet final, or if you have yet to formally initiate divorce proceedings, it may be best to consider whether you are emotionally ready to date. Even if you and your estranged spouse are no longer living as husband and wife, until your divorce is final, reconciliation is still a possibility. As Georgia divorce attorneys, it is not uncommon for us to represent individuals in divorce proceedings who ultimately reconcile with their spouse before their divorce becomes final. In fact, unless you are absolutely certain that your marriage is broken with no hope for reconciliation, it may be advisable to use your period to separation to reflect on your marriage and concentrate on your emotional health instead of immediately seeking a new relationship.

Grandparents May Seek Grandparents’ Visitation Upon Death of Parent

Monday, October 26th, 2015

Prior to the enactment of Georgia’s Grandparent Visitation Act, grandparents in Georgia did not have the legal right of visitation with their grandchildren. Upon passage of this very important family law, grandparents were afforded the right to exercise legally protected visitation rights with grandchildren. However, until an amendment of the Act was passed in 2012, grandparents could only assert visitation rights under certain situations. More specifically, grandparents could only file an original action seeking visitation when the parents were separated and the child was not living with both parents. Kunz v. Bailey, 290 Ga. 361 (2012)(holding “by virtue of the limiting language in the last sentence of O.C.G.A. §19-7-3 (b), grandparents may only file an original action for visitation when the parents are separated and the child is not living with both parents).

In response to the Georgia Supreme Court’s ruling in Kunz, the legislature amended the Grandparents Visitation Act in 2012, by adding subsection (d), which provides:

Notwithstanding the provisions of subsections (b) and (c) of this Code section, if one of the parents of a minor child dies, is incapacitated, or is incarcerated, the court may award the parent of the deceased, incapacitated, or incarcerated parent of such minor child reasonable visitation to such child during his or her minority if the court in its discretion finds that such visitation would be in the best interests of the child. The custodial parent’s judgment as to the best interests of the child regarding visitation shall be given deference by the court but shall not be conclusive

O.C.G.A. § 19-7-3 (d). In the recent Georgia Court of Appeals case Fielder v. Johnson, A15A0032 (Ga. Ct. App. July 16, 2015), the Court analyzed this new sub section, and confirmed that although the facts of Fielder and Kunz were almost identical, due to the new change in the law, the grandparents in Fielder did indeed have standing to file an original action seeking grandparents visitation, because their daughter (the child’s biological mother) was deceased.


Grandchildren of Divorce

Sunday, October 25th, 2015

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The impact of divorce on the children involved is an issue that is contemplated by nearly every divorcing parent, and is also a topic of various books, blogs and articles concerning divorce. This focus is of course important. However, there is another important relationship that may be negatively impacted by divorce: the relationship between grandparents and their grandchildren.

Unfortunately, a divorce may not only dissolve the relationship between the two former spouses, but it may also dissolve the relationship between the divorced spouses and their former in-laws. In fact, a divorce may leave former in-laws with negative feelings toward their child’s ex-spouse, and often those negative emotions are manifested (knowingly or unknowingly) when grandparents interact with their grandchildren. Just as it is important for ex-spouses to maintain a cordial relationship to effectively co-parents their children post-divorce, it is also important for grandparents to respect their former daughter or son in law for the benefit of their grandchildren. With this being said, if you have grandchildren of divorce, please keep the following in mind when spending time with your grandchildren:

  • Your grandchildren love their parents, both of them. Thus, if you are speaking ill of your ex daughter or son-in-law in front of your grandchildren, you may be causing your grandchildren to endure emotional distress. Not only may disparaging your former daughter or son in law cause your grandchildren potential emotional harm, but failing to even acknowledge their existence or refusing to talk about them at all with your grandchildren may also be emotionally harmful. So, be mindful of how you react and what your say when discussing your former son or daughter in law.
  • Remember, the relationship you foster with your grandchildren now will ultimately impact your future relationship with them. If your words or actions regarding their parents are upsetting to your grandchildren, they may eventually come to resent that. As a result, your grandchildren may avoid spending time with you as they grow up. No amount of disdain you have for your former son or daughter in law should cause you to risk a future relationship with your grandchildren.
  • Finally, you don’t have to like your former daughter or son in law. But, you should be civil with them for the sake of your grandchildren. Going forward, there will be several occasions, like graduations and weddings, where interacting with them will be necessary. Maintaining a civil relationship will not only make these occasions easier for you, but also more enjoyable for your grandchildren. Be sure to keep this in mind.

Although it is important for you to enjoy your relationship with your grandchildren, you should also ensure they enjoy and value their relationship with you. This can be achieved, in part, by respecting both of their parents. If however, you find yourself in a situation where one or both parents begin to block or interfere with your relationship with your grandchildren, there are steps you can take assert your grandparent visitation rights.

Five Overlooked Threats to Marital Bliss

Saturday, October 24th, 2015

Affairs, financial difficulties, and communication problems – these are the most commonly experienced marital roadblocks. As a result, many married couples actively work toward addressing these issues in an effort to secure their relationship. But, in addition to communication, financial and infidelity concerns, there are several other relationship roadblocks married couples may face that are often overlooked. Listed below are just a few of the overlooked threats to marriage. If you are recently married, or if you have been married for several years, considering and addressing the threats listed below may help you avoid the calamity that may be caused by leaving these issues unchecked.

  1. Marriage is hard work, often fraught with disagreements, hurt feelings, and misunderstandings. Thus, those who go into marriage expecting marriage to be easy often become disillusioned and frustrated.
  2. Marriage should be based on a foundation of honesty and trust. However, being honest with your spouse and being brutally honest with your spouse are two very different things. Sometimes, when you don’t have anything nice to say, it’s best to stay silent, because thinking honesty is always the best policy may end up fostering more resentment than it solves.
  3. Many people are keenly aware that marriage does not magically change people. However, some fail to realize this principle also applies more broadly. If your family was not fond of your significant other prior to your wedding (or vice versa), it is very likely this opinion will not change. As a result, believing you can change your family’s opinion of your spouse may place a strain on both your marital and familial relationships.
  4. People do not easily change their minds about their desire to have children, professional aspirations, or decisions concerning religious or social affiliations. With this being said, if your spouse told you his or her position regarding an important issue like the ones listed above, believe them. Ignoring what your partner said he wanted before you married with the hope you will change their minds will be unfruitful at best, and as worst it will be the root of several arguments.
  5. Generally, with the exception family abuse issues, what goes on between a married couple should not be shared unless both spouses are comfortable sharing that information. So, failure to discuss and set boundaries on what is shared outside the relationship may lead to marital strife if one spouse continually shares intimate details with others without the other spouse’s consent.

Get Married or Go to Jail?

Monday, September 21st, 2015


Imagine a Judge giving you a choice – get married or go to jail. This is essentially what happened to a Texas man who pleaded guilty to an assault charge of punching his girlfriend’s ex-boyfriend. Judge orders man to get married or go to jail, by Tony Marco,, August 8, 2015. In that case, the Judge gave the man the choice between spending 15 days in jail, or two years of probation. One of the probation terms was getting married to his girlfriend within 30 days. Before the Judge executed the order, he apparently asked both parties if they were OK with that term of probation, and they both said yes. Accordingly, the order was entered and they got married shortly thereafter.

While the couple themselves seemed to be OK with the ordered marriage, the woman’s father was less than pleased and tried to talk them out of it. According to the father, “Judge Rogers stepped into my family and tried to tell them what to do without any regard for me or anything. This isn’t his decision. I told them they didn’t have to do this, but they were afraid. They are young and they didn’t now that they had any other options.” The father may very well be correct.

In Georgia, “[t]o constitute an actual contract of marriage, the parties must consent thereto voluntarily…” O.C.G.A. § 19-3-4.

Though this case is in Texas, it is likely that that state has similar laws regarding entering into marriage voluntarily. In this case, though both parties indicated that they were “OK” getting married, it is unknown if they would have actually gotten married if not for the probation terms. If they woman’s father is correct that the couple didn’t know they had any other options, this seems to indicate that they felt they had to get married and, as such, didn’t do so completely voluntarily. As such, they may not have a valid marriage.

If, however, the marriage does prove to be valid, they would certainly have a good ground for divorce if they lived in Georgia. One ground for divorce in Georgia is “force, menace, duress, or fraud in obtaining the marriage.” O.G.C.A. § 19-5-3(4). Here, there was certainly duress as the man was set to go to jail if the parties did not get married within 30 days. Thus, they would easily be able to obtain a divorce if they chose to do so.

Establishing Paternity when both Putative Fathers are Identical Twins

Wednesday, September 16th, 2015

A few years ago, a paternity and child support case in Missouri presented a very interesting question regarding the determination of paternity: What happens when both putative fathers named in a paternity action are identical twins? In this Missouri case, twin brothers Raymon and Richard Miller both unknowingly engaged in a sexual relationship with the same woman. Subsequently, the woman both brothers were seeing, Holly Marie Adams, became pregnant. Although Holly named Raymon as the putative father for the purposes of determining paternity and establishing child support, Raymon objected and demanded a paternity test. However, in this case, a paternity test proved unhelpful for two reasons: 1) because Raymon and Richard are twins and share the same DNA, a paternity test revealed both brothers have over a 99.9% probability of being the father of Holly’s child, and 2) during the court proceeding, Holly testified that she had sex with both brothers, within hours of each other, near the date of conception.

Although the judge assigned to the case, Judge Fred Copeland, was not able to rely on the result of genetic testing to determine paternity and child support in this case, Judge Copeland ruled that regardless of the identical DNA test and the overlapping relationships, Raymon would be named the legal father of the child in question. In support of his decision, Judge Copeland noted that a court is not limited to relying solely on the results of a DNA test to determine paternity. Raymon appealed Judge Copeland’s decision, arguing that he should not be named the legal father, because the identical DNA results make it impossible to determine which brother is truly the biological father of the child in question. On appeal, the Appellate Court upheld Judge Copeland’s decision, which was based on the testimonial evidence presented at the hearing. Specifically, Judge Copeland relied on the testimony of Holly Adams, who testified that she believed the date of conception can be traced back to a night spent with Raymon.

Genetic or DNA testing is a very useful tool used by courts to determine paternity in cases where paternity is contested. But, as shown in this Missouri case, DNA testing cannot always be relied on to resolve paternity disputes. When the results of a DNA test are not reliable or definitive, paternity can still be established. In such a situation, a presiding court must simply rely on the tools and methods used to establish paternity before DNA testing was widely available, such as witness testimony and calculations regarding the date of conception.