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Georgia Case Law Update – Prabnarong v. Oudomhack

Sometimes, a custody situation presents that requires the immediate, emergency attention of the court. For example, there may be a situation where the parents live in different states and there is an allegation of abuse causing one parent not to want to send the child back to live with the other. In Georgia, there is a law that allows a Georgia court to step in. Specifically, “[a] court of this state has temporary emergency jurisdiction [to modify a child custody determination made by a court of another state] if the child is present in this state and the child has been abandoned or it is necessary in an emergency to protect the child because the child or a sibling or parent of the child is subjected to or threatened with mistreatment or abuse.” O.C.G.A. §19-9-64(a). Though this law is available to protect children in these situations, a court cannot and should not use it in non-emergent situations. The Georgia Court of Appeals recently reversed a trial court’s use of this law in Prabnarong v. Oudomhack. Prabnarong v. Oudomhack, A15A0978, November 19, 2015. 

In that case, the parents were divorced in Washington with the mother being awarded primary physical custody of their child. The mother and child subsequently moved to Georgia and the father continued to exercise visitation. Nine years after they moved to Georgia, the mother died and the father obtained an order awarding him primary physical custody. Shortly thereafter, the maternal uncle filed a motion for an emergency hearing and a petition asking the Georgia court to register the Washington divorce decree and parenting plan. He also asked for joint legal custody and primary physical custody, with visitation remaining the same. The uncle also attached an affidavit signed by the child wherein she elected to live with the uncle. The father presented the new Washington custody order for registration in Georgia and filed a Motion to Enforce. Despite this, the trial court used its emergency jurisdiction under OCGA §19-9-64(a) to order that the child “shall remain in the physical custody and care of the [uncle]” pending appointment of a guardian ad litem to determine permanent physical custody.

The father appealed, alleging that the trial court improperly exercised emergency jurisdiction, and the Court of Appeals of Georgia agreed. After citing several Georgia cases, the Court of Appeals held that there was no true, immediate emergency here. Even though the child alleged in her affidavits that her father neglected her when she was six or seven years old and she was scared of her stepbrother, all of these allegations were over six years ago and, thus present no immediate danger. In addition, the Court was not swayed by the uncle’s allegation that the move to Washington would amount to mistreatment by the father because it would remove the child from her family and friends in Georgia.

This case shows that a Georgia court cannot exercise emergency jurisdiction unless there is a true, immediate emergency. A custody case will eventually get in front of a Judge, though it may not be as quickly as you would like. This should not dissuade someone from seeking it if there truly is an emergent situation. Just make sure you have all your facts and supporting affidavits lined up to best make your case to the Judge.

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