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Case Law Update: Phillips v. Phillips, 316 Ga. App. 829 (2012)

In Georgia, it is possible that a parent's parental power can be lost to a grandparent, great-grandparent, aunt, uncle, great-aunt, great-uncle, sibling or adoptive parent if the court hearing the custody issue determines that an award of custody to one of these third parties "is for the best interest of the child or children and will best promote their welfare and happiness." O.C.G.A. § 19-7-1 (b.1). Absent from this list is step-parents, whom the Court of Appeals recently reaffirmed cannot seek legal custody or visitation of a child against a biological parent's wishes without having established legal ties via a formal adoption process.

In Phillips, when the parties married, Ms. Phillips had a young son (K.B.) from a previous relationship. During the course of their marriage, the parties had a daughter together (K.P.). After Ms. Phillips filed for divorce, the trial court conducted several hearings involving custody of the minor children, which ultimately led to the trial court granting temporary sole legal and physical custody of K.B. and K.P. to Mr. Phillips. The trial court detailed in-depth the harm that may come to K.B. if Ms. Phillips was awarded custody, and considered that Fulton County Department of Family and Children Services (DFACS) had opened a deprivation case concerning K.B. and would put him in foster care if Mr. Phillips was not awarded custody. Ms. Phillips appealed the trial court's temporary order granting Mr. Phillips sole legal and physical custody.

The Court of Appeals reversed the trial court's temporary order as to K.B., and remanded the case to the trial court to award Ms. Phillips custody. The Court noted, "[o]nly the mother of a child born out of wedlock is entitled to custody of the child, unless the father legitimates the child . . . [o]therwise, the mother may exercise all parental power over the child." O.C.G.A. § 19-7-25. Although the trial court went to great efforts to shown it was in K.B.'s best interest for Mr. Phillips to have custody, a step-parent does not have the same status as those relations listed under O.C.G.A. § 19-7-1 (b.1). In Phillips, since Mr. Phillips could not legitimate K.B. (he was not K.B.'s biological father), Mr. Phillips should have established legal ties to K.B. via a formal adoption process in order to later have the ability to seek custody.

The law in Georgia in reference to custody rights can be complicated. If you have an issue regarding custody rights, you should contact an experienced family law attorney for more detailed information.

Courtney H. Carpenter


Case Law Update
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