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Georgia Case Law Update – Jewell v. McGinnis et al.

Every family is unique and, thus, every custody case is distinct in its own way. In some families, both parents want to be equally involved and see their kids as much as possible, making joint custody a possibility. In other families, parents may live in different cities or have jobs that require long hours, requiring one parent to have primary custody with the other having visitation. And in other families, one or both parents may either not want to be involved, or not be fit to have custody, bring third parties, such as grandparents, into the custody equation. However, while parents may personalize their Parenting Plan so that it fits the unique needs of their particular family, the actual designation of custody must strictly follow Georgia law.

In Jewell v. McGinnis et al., Court of Appeals of Georgia reversed a Custody Order for failing to comply with Georgia law. Jewell v. McGinnis et al., A17A0161 (June 22, 2017). In that case, which had already been remanded by the Court of Appeals of Georgia for problems with the initial Custody Order, the trial court entered a Revised Custody Order, granting joint legal custody to the mother and paternal grandparents, and primary physical custody to the grandparents. The mother appealed, alleging that Georgia law “does not authorize an award of joint legal custody to a parent and third party.” The Court of Appeals of Georgia agreed, remanding the case yet again.

The Court pointed out that the definition of “joint legal custody” mentions only parents, not third parties – “’Joint legal custody’ means both parents have equal rights and responsibilities for major decisions concerning the child, including the child’s education, health care, extracurricular activities, and religious training; provided, however, that the judge may designate one parent to have sole power to make certain decisions while both parents retain equal rights and responsibilities for other decisions.” O.C.G.A. § 19-9-6(5). Since this statute does not mention third parties in regards to joint legal custody, Georgia courts have held that “a third party may have sole legal custody of a child when no parent is suitable for custody.” See Jewell (citing Stone v. Stone, 297 Ga. 451, 455 (774 SE2d 681) (2015)).

Obviously, this case presents a unique situation where the mother has been found to be able to make decisions regarding the children, but not have them live with her full time. Thus, on remand, the trial court will have to determine whether the mother is suitable for custody. If she is not, then the grandparents will end up with both legal and physical custody, and the mother will likely get visitation. If she is found suitable to have custody, assuming the father is not in the picture, then she will end up with sole legal custody. At that point, the court may re-examine whether the grandparents having primary physical custody is in the children’s best interest, given that the mother will be the decision maker. Either way, however, these parties should be able to put enough details into their Parenting Plan to make the arrangement work for their unique case.


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