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Georgia Case Law Update – Kogel v. Kogel

The Uniform Child Custody Jurisdiction and Enforcement Act (“UCCJEA”) dictates how custody cases are handled when the parents live in different states. A section of the UCCJEA that is referred to often is that which addresses which state has jurisdiction to hear a particular child custody case.  Specifically, the UCCJEA states that Georgia “has jurisdiction to make an initial child custody determination only if this state is the home state of the child on the date of the commencement of the proceeding, or was the home state of the child within six months before the commencement of the proceeding and the child is absent from this state but a parent or person acting as a parent continues to live in this state.” O.C.G.A. § 19-9-61. The statute also addresses at what point Georgia would have jurisdiction if another state does not have or declines jurisdiction.

The Court of Appeals of Georgia recently heard a custody case that is an excellent example of how a Court will apply the above statute. Kogel v. Kogel, A16A0128 (May 18, 2016). In Kogel, the parties were married and had a child in Texas. They subsequently lived in Wyoming for a year and then moved to Georgia. Three short months after moving to Georgia, the mother returned to Texas with the child, initially telling the father that she was only going for a short trip. A few days later she told him that she was not coming back. Over the next few months, she alternated between leading him to believe that she was going to return to Georgia and saying she was never coming back. When she did not return, the father filed for divorce in Georgia, seeking temporary and permanent custody of the child.

The court held a hearing, which the mother did not attend, and awarded temporary custody to the father. Several months later, the mother filed a motion to vacate the temporary order, alleging it lacked subject matter jurisdiction. After the trial court declined to vacate the order, the mother appealed. The Court of Appeals of Georgia reversed the trial court’s ruling and vacated the temporary order. Citing the UCCJEA, the Court held that Georgia could not qualify as the child’s home state for several reasons: the mother told the father she was not returning; even when she said she would come back, she repeatedly made excuses about why she had to delay; the mother maintained employment in Texas; the child had a regular doctor, attended church and received public benefits in Texas. This was in contrast to the relationship with child had with Georgia. The Court, therefore, held that the child’s time in Texas was not a temporary absence from Georgia” and “Georgia was not [the child’s] home state because [the child’ had not lived in Georgia for at least six months immediately before commencement of the child custody proceeding.” Though the court did not come right out and say it, it is likely that, looking at the facts of the case, Texas actually had subject matter jurisdiction over this custody dispute.

It should be noted that the mother in this case did not raise the issue of subject matter jurisdiction until late in the case. The lack of timeliness does not matter, however. Subject matter jurisdiction is so important and lack of it can be a denial of a party’s rights. As such, a challenge can be raised at any time and should never be dismissed as untimely.

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Child Custody
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