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I’m Divorcing, But What If “My Child” Isn’t Mine?

Thursday, January 28th, 2016

In Georgia, a man married to a woman at the time she conceives or gives birth to a child is presumed to be the biological father of that child, and will be deemed the legal father of that child upon divorce. As a result, that man will be liable for child support. But, what if he is not the biological father of that child? If you are a man currently considering or going through a divorce in Georgia, and you have concerns that your child really isn’t yours, you may be concerned that you will be left paying child support for someone else’s child post-divorce. Although it is difficult to defeat the presumption that you are the father of children born during your marriage, it is possible.

If you have concerns that your child isn’t really yours, it is imperative that you address this during the divorce process, not afterwards. In fact, the sooner you inject this issue into the divorce, the better. So, in your Complaint for Divorce, or in your Answer to your wife’s divorce complaint, state that you believe the child born during your marriage is not your biological child, and ask the court to order a DNA test. Even though it is possible for you and your soon to be ex-wife to agree that the child is not your biological child, seeking a DNA test is the best way to have conclusive evidence in case the issue is disputed later.

Once a DNA test has been conducted, and you are found not to be the father, you may then petition the court to terminate your parental rights during the divorce proceeding. Many are only familiar with termination of parental rights in the context of Juvenile or deprivation proceedings. However, according to O.C.G.A. § 19-7-1: parental rights may be lost or terminated by “[…] A Superior court order terminating parental rights of the legal father or the biological father who is not the legal father of the child in a petition for legitimation, a petition to establish paternity [or] a divorce proceeding […] provided that such termination is in the best interest of such child […].” O.C.G.A. § 19-7-1(b)(8). In other words, as a part of the Final Judgment and Decree of Divorce in your case, the judge can issue and order terminating your parental rights concerning a child born during your marriage that is not your biological child. This turn would eliminate any responsibility you would have to pay child support for that child.

It is important to note that although a Superior court judge may terminate parental rights during a divorce proceeding, he or she will only do so if it is in the best interest of the child. In determining the best interest of the child, the court will not only consider the child’s biological parentage, but also whether the non-biological father has ever acted as the child’s father. For example, a court may not terminate parental rights where a man supported a child financially or otherwise, knowing the child may not be his biologically.

The process of de-legitimation or terminating parental rights during the divorce process is extremely complex, and involves the analysis and application of Georgia statutory and case law to be successful. So, if you are divorcing and you are concerned that “your child” really isn’t yours, contact our office today to discuss your options in more detail.

Gay Rights and Adoption

Tuesday, January 12th, 2016

As discussed in a previous blog, in July the United States Supreme Court legalized same sex marriage nationwide, giving homosexual couples equal rights and benefits under the law. Despite the sweeping ruling, opposition to same sex marriage has continued around the country. A Utah judge recently sparked criticism and outrage by removing a foster child from a lesbian couple and denying an adoption, saying that the child would be better off with heterosexual parents. Judge recuses himself in lesbian foster child case, by Ana Cabrera, Greg Botelho, Chandrika Narayan, and Tiffany AP, cnn.com, November 17, 2015.

In that case, parents April Hoagland and Beckie Peirce were legally married and already raising Peirce’s two children when they began fostering the baby at issue. The parents had already passed the stringent background checks, home inspections and interviews required by the Utah Division of Child and Family Services and the baby’s biological mother supported the adoption. Despite these facts, Juvenile Court Judge Scott Johansen held that the adoption by a same sex couple was not in the child’s best interest, citing “belief that research has shown that children are more emotionally and mentally stable when raised by a mother and father in the same home…” The Judge further ordered that the Utah Division of Child and Family Services “place the child with a duly married, heterosexual foster-adoptive couple within one week.”

After facing intense backlash from his decision, Judge Johansen reversed his order and recused himself from the case. A different Judge will conduct the adoption hearing and the child will stay with Hoaglund and Peirce in the interim. Judge Johansen was clearly imposing his personal views and beliefs on this case, which, in his role as a Judge, he is not allowed to do. After the Supreme Court’s July ruling, same sex couples have equal rights under the law and cannot be denied an adoption (or any other right) based on their homosexuality alone. Assuming the fact that they were a homosexual couple was the only reason the adoption was denied and there were no other issues that would make the next Judge believe that the adoption is not in the child’s best interest, the adoption will most likely be granted at the next hearing.

Georgia Case Law Update – Vincent v. Vincent

Wednesday, January 6th, 2016

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The Court of Appeals of Georgia recently heard its second grandparent visitation appeal in as many months. Vincent v. Vincent, A15A1244 (2015). In the Vincent case, the mother and father had divorced after the father was incarcerated, and the paternal grandparents sought visitation with their minor grandchildren over the mother’s objection. After a hearing, the trial court denied the grandparents’ petition, relying on subsection (c) of the grandparent visitation statute, which provides, in part, that “the court may grant any grandparent of the child reasonable visitation rights if the court finds the health or welfare of the child would be harmed unless such visitation is granted and if the best interests of the child would be served by such visitation.” O.C.G.A. § 19-7-3(c)(1). The grandparents appealed.

After review, the Court of Appeals of Georgia vacated the trial court’s order and remanded the case. Specifically, the Court held that the trial court applied the wrong standard in determining whether grandparent visitation should be awarded, and should have applied subsection (d) of the grandparent visitation statute, which was added in 2012 to read: “[n]otwithstanding the provisions of subsections (b) and (c) of this Code section, if one of the parents of a minor child dies, us uncapacitated, 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.” O.C.G.A. § 19-7-3(d). Since the father was incarcerated, the trial court should have applied this more favorable standard, rather than the more stringent subsection which requires the grandparents to prove that the health or welfare of the child would be harmed if visitation were not granted.

It is interesting that both grandparent visitation appeals were a result of trial court’s ignoring the fact that the grandparent visitation statute was amended to address the exact issue in these appeals. In both cases, it is clear that the parties/attorneys and the trial court judges were not aware of the 2012 change in the law. Hopefully, anyone thinking about filing a future grandparent visitation case will review the most recent law before taking his or her case to court.

 

 

Georgia Case Law Update – Fielder v. Johnson

Thursday, December 10th, 2015

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Grandparent visitation is not an issue that comes up frequently in family law courts but, when it does, it is usually an emotional case as there is a parent who is basically denying grandparents the right to see their grandchildren. The Court of Appeals of Georgia recently heard a case wherein the father was denying visitation to the maternal grandparents. Fielder v. Johnson, A15A0032, Court of Appeals of Georgia (2015). In that case, the father and biological mother divorced and the father was awarded sole physical custody of the child. Subsequently, the father remarried and the biological mother passed away. The father’s wife thereafter adopted the child. Id. The parents of the biological mother (“grandparents”) filed a petition for grandparent visitation and the father filed a motion to dismiss, which was granted by the trial court. The grandparents appealed.

In granting the motion to dismiss, the trial court relied on the father’s argument that the Grandparent Visitation Statute (O.C.G.A . §19-7-3) combined with the seminal case Kunz v. Bailey made it clear that the case must be dismissed because it was filed as an original action. Taken together, the Grandparent Visitation Statute and the Kunz case hold that grandparents can only file an original action for visitation when the parents are separated and the child does not live with both parents. The trial court, thus, held that “[The Grandparents] cannot simply ignore the fact that the Child was adopted by Stepmother…The Child is living with two parents, her biological father and her adoptive mother; therefore, the [Grandparents] do not have standing to file a petition seeking court-ordered visitation and access.” If the law on the issue had stopped at that point, they may have been correct.

However, according to the Court of Appeals, the trial court ignored the fact that the Grandparent Visitation Statute was amended shortly after the Kunz case to deal with this issue. Specifically, the statute now includes subsection (d) which states, in part, “…if one of the parents of a minor child dies…the court may award the parent of the deceased…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 interest of the child.” O.C.G.A. §19-7-3(d). Reading the plain language of this amended statute, the grandparents in this case clearly have standing to file an original action for grandparent visitation. As such, the trial court’s decision was reversed. Whether the grandparents win in their quest for visitation will be up to the trial court, who will use the best interests of the child standard, while giving deference to the father’s judgment on that issue.

Kim Davis and Same Sex Marriage

Thursday, December 3rd, 2015

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There are many people in this country who still do not accept the Supreme Court’s June ruling legalizing same sex marriage nationwide. None of these opponents have been in the news more than Rowan County, Kentucky Clerk of Court, Kim Davis. Despite the clear Supreme Court ruling, Davis refused to issue marriage licenses to same sex couples claiming she has a “sincere religious objection.” ACLU wants Kim Davis in contempt of court, by Ariane de Vogue and Jeremy Diamond, cnn.com, September 2, 2015. In fact, Davis is so opposed to same sex marriage that she forbid her deputy clerks from issuing the licenses, since they bear her name as clerk of court. She even filed an emergency action with the Supreme Court, which they denied and ordered her to begin issuing licenses. When she still refused, the American Civil Liberties Union (“ACLU”) filed a motion to hold Davis in contempt, which was ultimately granted and resulted in Davis’s incarceration.

Davis spent 5 days in jail and was released under an order requiring her not to interfere with her deputies issuing marriage licenses to same sex couples. It appears that she is begrudgingly complying with the order, though the licenses have been modified so she does not have to sign them. Kim Davis stands ground, but couple get license, by Mariano Castillo and Kevin Conlon, cnn.com, September 14, 2015. It is unclear whether modified these marriage licenses will ultimately be held to be valid.

Kim Davis’ refusal to issue marriage licenses has been the only actual challenge to the Supreme Court’s ruling legalizing same sex marriage. Even those who are strongly opposed to the decision appear, at least, to have accepted it as valid law. The difference with Davis is that her job requires her to issue marriage licenses with which she disagrees, while others may just have an issue with same sex marriage in the abstract, even though it does not affect their lives. Though we may see more challenges in the future, it is clear that the United States Supreme Court as well as state courts will not accept a person’s refusal to comply with the ruling.

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 GAprobate.org.

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.