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Evidence in appeal of custody award

When presenting your divorce, custody modification, child support modification, or other family law case to the trial court, it is imperative that your Atlanta divorce attorney presents all relevant evidence in your case. The Supreme Court of Georgia recently denied an appeal by a father in a divorce case who attempted to present evidence in his appellate brief that he did not present at his hearing in front of the DeKalb County trial court. Bankston v. Lachman, 286 Ga. 459 (2010). In that divorce case, the trial court awarded primary physical custody of the parties’ two-year-old daughter to the mother and awarded visitation to the father “for four hours each weekend until the child begins kindergarten full time,” at which point overnight visitation would begin. Id. at 459. Though the father requested overnight visitation to begin immediately, the trial court denied his request, explaining that “it believed young children should not spend long periods and weekends with non-custodial parents…[b]ased on everything [the court] had read and talked to about child development experts…” Id. at 460.

The father appealed the trial court’s denial of additional visitation arguing that “the trial court is out of sync with current opinion about the need to establish a firm parental bond between a child and his or her non-custodial parent,” and referencing two models recommending “that children have more visitation time, including overnight visits, with non-custodial parents, beginning at an early age, and increasing as the child grows older.” Id. The Supreme Court of Georgia pointed out, however, “the record does not reflect that that these models were presented to the trial court; nor does it show that trial counsel made the argument which husband asserts on appeal.” Id. Thus, these arguments could not be relied upon on appeal. The father had to prove that the trial court abused its discretion in ruling on the evidence presented to it, and this the father could not do.

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