The Meriwether & Tharp Divorce Attorney Blog

Return to the Blog Home Page

Family Law Case Updates

Child Custody: The Standard for Modification of Visitation Rights

Wednesday, August 6th, 2014

Some of the most important questions parties to a divorce will ask are “who will make important decisions for my child and how much visitation should my spouse have?” These questions fall under the purview of child custody. Even if the issue of child custody is resolved when the divorce is finalized, what is in the best interests of the child now may not be in the best interests of the child later on. Therefore, parties will sometimes seek to modify their child custody order. Nevertheless, modifying child custody orders is often not as simple as it sounds. In Georgia, there are specific rules and standards that must be observed for a modification to be proper. A recent Georgia case analyzed these rules and standards and set forth some guidelines for us to follow.

In Cannella v. Graham, the trial court originally awarded the parties joint legal custody and awarded primary physical custody to the Mother and visitation to the Father. Cannella v. Graham, 325 Ga. App. 596 (2014). Approximately one year after the trial court’s order, Mother filed to modify child custody, seeking sole legal custody of the child and asking that Father’s visitation be supervised or eliminated. Id. After Mother presented her evidence, the trial court granted Father’s motion for a directed verdict. Id. Mother subsequently appealed. Id.

The Court of Appeals of Georgia noted that “[v]isitation rights of non-custodial parents are subject to review and modification upon the motion of either parent every two years without the necessity of showing a material change in circumstances.” Id. (quoting In the Interest of R. E. W., 220 Ga. App. 861, 862 (1996)). However, when determining whether to modify visitation rights, the “best interests of the child standard” shall be considered. See Id. (citing In the Interest of R. E. W., 220 Ga. App. 861, 862 (1996)). The court noted that the trial court granted Father’s motion for a directed verdict because Mother “failed ‘to show a substantial change of condition affecting the minor child which would justify a modification of custody.’ The order does not mention the child’s best interest. The order therefore reflects that the trial court applied the wrong standard.” Id. at 597. While the trial court orally announced that they made a “best interests of the child” determination, they neglected to mention any such determination in their written order. Id. “[A] trial court’s oral pronouncements are not binding because, while they may provide insight on the intent of the subsequent written judgment, any discrepancy between the written judgment and oral pronouncements is resolved in favor of the written judgment.” Id. (quoting In the Interest of J. J., 317 Ga. App. 462, 463 (2012)). Accordingly, the court vacated and remanded the case so that the “the best interests of the child standard” could be applied. Id.

By: Jason W. Karasik, Associate Attorney, Meriwether & Tharp, LLC

Case Law Update: United States v. Windsor, executor of the estate of Spyer, et al.

Wednesday, September 18th, 2013

The United States Supreme Court just ruled that Section 3 of the Federal Defense of Marriage Act (DOMA) is unconstitutional as it violates certain citizens’ Fifth Amendment Right to “Liberty”.

What is DOMA? What does the DOMA decision mean?  Are gay marriages legal? Is there such thing as a gay divorce?

DOMA is the Defense of Marriage Act, which is a United States federal law that was originally enacted in 1996 under President Clinton.  Section 3 of DOMA codified the definition of same-sex marriages for all federal purposes as a marriage between a man and a woman.  DOMA has two operational parts: Section 2 and Section 3. Section 2 allows states to refuse to recognize same-sex marriages performed under the laws of other states that violate the first state’s public policy. Section 2 was not altered by the recent Supreme Court decision.  The Supreme Court solely addressed the Constitutionality of Section 3.

The crux of the Supreme Court ruling is that Section 3 created two classes of married couples in states that recognized gay marriages.  One class was the heterosexual married couples recognized under federal law. The other class was the gay married couples not recognized under federal law.  Because DOMA when applied in states recognizing gay marriages, barred federal benefits to spouses of gay marriages, it essentially circumvented that state’s definition of marriage as applied to state recognized same sex marriages, DOMA was unconstitutional because it denied equal treatment under the law.

The Windsor decision means that spouses of gay marriages in states that recognize their marriage will be entitled to certain Federal Benefits that they were excluded from previously.  As Section 2 of DOMA was not addressed or contested, Gay marriage is still a state to state issue.  For a gay marriage to be valid and/or legal it must be valid in the state that issues the marriage license and/or recognized by the state in which the gay couple reside (Windsor married in Canada but lived in New York).

What does Windsor mean in simple terms?

Basically, state law on the definition of marriage controls over federal law.  Each state can specify the age requirement, family relation limitations (whether you can marriage your first cousin), and gender requirements for marriage.  Georgia law does not recognize foreign marriage licenses that are against Georgia’s public policy, i.e. a marriage that is not between a man and a woman or a marriage that does not meet Georgia’s other marriage requirements.

On a broader national scale, some states have expanded domestic relations relief to gay married couples despite failure to recognize their marriage.  Some states that do not recognize gay marriages will grant gay divorces.  Therefore, gay divorces exist in states that recognize gay marriages and in some states that don’t recognize gay marriages.

For a visual aid on states and where they stand on gay marriage check out this Map:

http://www.slate.com/articles/news_and_politics/jurisprudence/2013/04/mapping_which_states_will_divorce_gay_couples_and_how_it_will_all_work_if.html

What is an example of the Supreme Court’s Windsor decision?

Example 1:

Susy and Mary get legally married in New York where they live.  Susy is an employee of the federal government.

Question 1: Is Mary entitled to “spouse” benefits from Susy’s employment?

Yes. New York state law recognizing gay marriages trumps the DOMA federal definition of marriage.  Section 3 of DOMA as applied in New York is unconstitutional.

Example 2:

Susy and Mary get legally married in New York.  They then return to their home in Georgia.  Susy is an employee of the federal government.

Question 1: Is Mary entitled to “spouse” benefits from Susy’s employment?

To be determined.  Because the Supreme Court decision was so narrow (it only addresses federal benefits to gay married couples in states that recognize their marriage) we cannot be sure whether the federal benefits will be extended to gay married couples in states that don’t recognize their marriage.  There is no violation of the liberty right if the state you live in treats all “married couples” the same.  Gay married couples are not recognized as “married” in 29 states and therefore are not the subject of a discriminated class by Section 3 of DOMA.

Example 3:

Susy and Mary return from New York married.  Neither is an employee of the Federal government.

Question 1: Is Mary entitled to “spouse” benefits form Susy’s employment?

No. Georgia does not recognize their marriage as valid.

Question 2: Can Mary divorce Susy in Georgia?

No. Georgia does not recognize their marriage. Without a valid marriage, there can be no divorce and Georgia has not recognized special relief for gay married couples.

Question 3: Is Mary entitled to any legal “marital” remedies from Susy due to their New York marriage?

No.  Georgia does not recognize their gay marriage.  If Mary and Susy separate there will be no legal right to alimony, child support, and other remedies available to married couples in Georgia. However, if they return to New York this may be possible.

Question 4: Can Susy and Mary file a married filing joint FEDERAL tax return?

To be determined.  The Supreme Court did not address this issue in the Windsor decision. It is best to get advice from a qualified Certified Public Accountant on this issue.  It appears to be yes in states that recognize same sex marriages, but unclear everywhere else.

Question 5: Can Susy and Mary file a married filing joint Georgia State tax return?

No. Susy and Mary are not married under Georgia law.  It is best to get advice from a qualified Certified Public Accountant on this issue.

 

U.S. v. Windsor summary:

Edith and Thea were a gay couple that lived in New York.  They began their relationship in 1963.  In 1993, New York created the domestic partnership.  Edit and Thea immediately became domestic partners.  Then in 2007 Edith and Thea went to Ontario, Canada to get married.  They returned to New York.  New York law recognized foreign gay marriages in 2009.  Thea died in 2009 and left her estate to Edith.  Edith tried to file an exemption on her federal estate taxes as Thea’s spouse.  The Federal government acting under DOMA did not recognize Edith as Thea’s spouse and determined that Edit owed $363,053 in estate taxes.  Edith paid the tax liability and then filed suit in the Federal District Court alleging that Section 3 of DOMA was unconstitutional.   Section 3 of DOMA defined marriage as between a man and a woman.  President Obama and the Executive Branch refused to defend the Constitutionality of Section 3 of DOMA.  Consequently, the Bipartisan Legal Advisory Group (BLAG) of the House of Representatives by vote intervened to defend the constitutionality of Section 3 of DOMA  in the District Court.   The District Court allowed BLAG to enter the suit as an interested party.

The trial court and appellate court found Section 3 of DOMA unconstitutional because it discriminated against gay married couples without any legitimate purpose.  The IRS refused to recognize Edith as a spouse under Section 3 of DOMA  and refused to pay back Edith’s $363, 053.  A Petition for Certiorari was filed.  The Supreme Court of the United States granted certiorari.

The Supreme Court has historically recognized the regulation of domestic relations as a virtually exclusive province of the States, (Sonsa v. Iowa, 419 U.S. 393, 404), except for certain constitutional guarantees. See e.g. Loving v. Virginia, 388 U.S.1.  “Marriage between a man and a woman no doubt had been thought of by most people as essential to the very definition of that term and to its role and function throughout the history of civilization.  That belief, for many who long have held it, became even more urgent, more cherished when challenged. “ U.S. vs. Windsor, et al. pg13 (2013).  The stated purpose of DOMA was to promote and defend heterosexual-only marriage laws.  However, the federal government in its attempts to promote and defend heterosexual-only marriage laws, effectively violated the citizens’ rights in each State to create their own definition and laws regarding marriage through the proper legislative process.

“The limitation of lawful marriage to heterosexual couples, which for centuries had been deemed both necessary and fundamental, came to be seen in New York and certain other States as an unjust exclusion.” U.S. vs. Windsor, et al. Pg14.  The voting population of New York effectively passed law that recognized same sex marriage.  Later, New York amended its own marriage laws to permit same sex marriage.  The citizens of New York passed the same sex marriage law by utilizing the rights granted to every citizen of the United States by the Constitution.  The Constitution also gives the States almost exclusive authority to manage legislation on domestic relations.

Consequently, the Supreme Court held that Section 3 of DOMA was unconstitutional as it discriminated against gay married couples without a legitimate purpose.  Because Section 3 of DOMA did not have a legitimate purpose to discriminate, the States had exclusive authority to define “marriage”.   Section 3 of DOMA purposely excluded gay married couples from being defined as “married” or “spouses” when applying federal laws, which usurped the State’s right to define marriage.

What does the DOMA decision mean for Georgia residents?

Nothing has changed regarding benefits to gay married couples, unless the federal government extends benefits voluntarily to gay married couples in the state.  The Federal government is not required to do so at this time.

What does the DOMA decision mean for residents of state’s that recognize gay marriages?

  1. Government healthcare as the spouse of an employee of the federal government
  2. The right to be buried next to your spouse in a veteran’s cemetery
  3. Bankruptcy protection for domestic support obligations
  4. All legal remedies available to married individuals as a resident of the state
  5. If you live in a state recognizing gay marriage, you are married to a spouse of the same sex, and you are a United States official, a United States judge, or a federal law enforcement officer, it is a federal crime for anyone to assault, kidnap, or murder your spouse with the intent to influence or retaliate against the official.

 

Will gay marriage be recognized in Georgia in the future?

Gay marriage may be passed through the legislative process of any state.  The Supreme Court has declined to interpret the Fifth Amendment’s right of Liberty to include the right to marry the person of your choosing.  The Federal Legislature may pass an Amendment to the Constitution to define and recognize gay marriage, but that step would require the proper legislative procedure.   Thereafter, the states would have to ratify the Amendment to the Constitution.  The current method for recognizing gay marriages is through the State legislative process.   In the future, I would predict that someone will challenge Section 2 of DOMA and the Supreme Court’s may shine some light on the issue.

The Windsor decision when applied in Georgia has a very limited effect on residents.  The good news is that every voting citizen has a voice and can steer their legislature in the direction of their choosing regarding gay marriage. However, even amending a state’s constitution may not guarantee the desired result.  See, e.g. Hollingsworth, et al v. Perry, et al., 570 U.S. ___(2013). (The Supreme Court would not review a federal district court’s injunction banning California officials from enforcing Proposition 8). Unfortunately, the Windsor decision gives little direction to this very controversial issue.

 

By Charlotte Ruble