FIRST DIVISION BARNES, P. J., DOYLE, P. J., and LAND, J.
NOTICE: Motions for reconsideration must be physically received in our clerk’s office within ten days of the date of decision to be deemed timely filed. https://www.gaappeals.us/rules
June 26, 2023
In the Court of Appeals of Georgia A23A0302. WILLIAMS v. PHILLIPS.
DOYLE, Presiding Judge.
Delano Williams, the father of minor child J. K. M. (the “father”), appeals from
the trial court’s order awarding custody to the child’s maternal grandmother, Dorothy
Phillips (the “grandmother”).1 The father contends the trial court erred in concluding
that J. K. M. would suffer long-term emotional harm if custody were awarded to him.
For the following reasons, we reverse and remand with direction.
When reviewing an order in a child custody case, we view the evidence in the light most favorable to the trial court’s decision. We will not set aside the trial court’s factual findings if there is any evidence to support them, and we defer to the trial court’s credibility determinations.
1 Both the father and grandmother filed petitions for custody, and the trial court consolidated the cases. We review de novo, however, the legal conclusions the trial court draws from the facts.2
So viewed, the record shows the following. J. K. M. was born in 2015 to
unmarried parents. The father moved to Texas in 2016, less than a year after the child
was born, but he moved back to Atlanta when J. K. M.’s mother (the “mother”) said
she needed help with the baby. The father helped take care of J. K. M. until August
2018, when he moved to Texas for a new job. Two months later, the father learned
that the Division of Family and Children Services (“DFCS”) had removed J. K. M.
from the mother’s custody. The father contacted DFCS and asked for custody, but
DFCS advised that he needed to legitimate the child first. Although the father reached
out to an attorney in November 2018, he was not able to file a petition for
legitimation and custody until August 2019. The trial court granted the petition and
entered an order of legitimation in December 2019.
When DFCS removed J. K. M. from the mother’s custody, he was placed with
the grandmother, who was also raising the mother’s two teenage sons. In the year and
a half prior to the DFCS placement, J. K. M. had spent a lot of time in the
2 (Citations omitted.) Mashburn v. Mashburn, 353 Ga. App. 31, 32 (836 SE2d 131) (2019).
2 grandmother’s home when the mother needed help. The child had some issues with
his speech, and the grandmother enrolled him in speech therapy and completed
exercises with him. In 2019, DFCS recommended that the grandmother be awarded
permanent guardianship of J. K. M. because the mother was not taking the medication
she needed to be able to function. The mother initially agreed with DFCS’s
recommendation. Later, however, the mother opposed the plan, and during the June
2021 final hearing she asserted that the grandmother’s husband had sexually abused
her as a child and described their family as “very dysfunctional,” and asked the court
to award custody to the father. When the grandmother took the stand, she testified
that although she was “not yet” divorced, she had not lived with her husband for
years.
The father visited J. K. M. in November and December 2018, after he moved
to Texas. He saw the child only a few times in 2019, in part because he was living in
Texas and his visitation periods were limited to two hours at a time. Then, once the
COVID-19 pandemic struck in 2020, the father stopped traveling altogether. The
father communicated with J. K. M. on FaceTime, once or twice a month before the
July 2020 hearing and at least once a week after that hearing.
3 At the time of the final hearing in June 2021, the father was living with his wife
of two years and his eight-year-old stepdaughter in a three bedroom home that had
space for J. K. M. The father and his wife both worked, and their combined income
was over $100,000. The father’s community in Texas had adequate medical facilities
and any therapists J. K. M. would need to see, and the father’s insurance would be
able to cover J. K. M. Additionally, the father had found a school that would be
appropriate for the child. The father admitted that he was in arrears as to child
support, but explained that he had set up a garnishment and was thereafter unable to
revise the amount that was taken from his paycheck. He also asserted that he had sent
extra payments in some months.
The grandmother admitted she had no evidence that the father would be an
unfit parent, but testified that because J. K. M. is so bonded to her and his brothers,
she believed that removing him from their home would cause “a lot of psychological
issues.” The grandmother’s daughter, J. K. M.’s aunt, also testified that because of J.
K. M.’s strong bond with the grandmother and his brothers, it was in his best interest
to continue to live with the grandmother.
In August 2021, the court entered a final order awarding permanent legal and
physical custody to the grandmother and visitation rights to the father. In its order,
4 the trial court recognized that the father and his wife had maintained steady
employment in spite of the COVID-19 pandemic and that the father had legitimated
the child. The court further observed, however, that J. K. M. had lived with the
grandmother and his two older brothers, of whom the grandmother has custody
through a permanent guardianship, since 2017. The court found that the child has “a
very strong bond” with the grandmother and his brothers, emphasizing that she had
been his caretaker “for the vast majority of his life.” The court also noted that
although the mother’s instability made her unfit to have custody of the child, the
grandmother allowed her to have access to J. K. M. and the mother-child relationship
would be severed if the child were relocated to Texas.
As to the father, the trial court recognized that he made attempts through the
court system to obtain custody of J. K. M. The court also found, however, that the
father’s attempts to have more involvement in the child’s life were “sporadic and
inconsistent,” emphasizing that the father had not physically visited J. K. M. since
December 2019 and instead relied on video calls to have contact with him. On this
point, the trial court specifically noted that although the COVID-19 pandemic may
have been a factor in the father’s failure to exercise his visitation rights, the father had
traveled to Georgia for court hearings on two separate occasions and made no attempt
5 to visit with J. K. M. during those trips. The court also noted that the father was in
arrears for over $6,500 in child support and was paying only $168 per month despite
a court order requiring him to pay $389 per month.
Based on these facts, the trial court found that there was clear and convincing
evidence that J. K. M. would suffer long-term emotional harm if custody were
awarded to the father. After the trial court entered its final order granting custody to
the grandmother, the father filed this appeal.
As we evaluate this appeal, we are mindful that “under both the United States
and Georgia Constitutions, parents have a fundamental right to the care and custody
of their children.”3 This “is a fiercely guarded right that should be infringed upon only
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FIRST DIVISION BARNES, P. J., DOYLE, P. J., and LAND, J.
NOTICE: Motions for reconsideration must be physically received in our clerk’s office within ten days of the date of decision to be deemed timely filed. https://www.gaappeals.us/rules
June 26, 2023
In the Court of Appeals of Georgia A23A0302. WILLIAMS v. PHILLIPS.
DOYLE, Presiding Judge.
Delano Williams, the father of minor child J. K. M. (the “father”), appeals from
the trial court’s order awarding custody to the child’s maternal grandmother, Dorothy
Phillips (the “grandmother”).1 The father contends the trial court erred in concluding
that J. K. M. would suffer long-term emotional harm if custody were awarded to him.
For the following reasons, we reverse and remand with direction.
When reviewing an order in a child custody case, we view the evidence in the light most favorable to the trial court’s decision. We will not set aside the trial court’s factual findings if there is any evidence to support them, and we defer to the trial court’s credibility determinations.
1 Both the father and grandmother filed petitions for custody, and the trial court consolidated the cases. We review de novo, however, the legal conclusions the trial court draws from the facts.2
So viewed, the record shows the following. J. K. M. was born in 2015 to
unmarried parents. The father moved to Texas in 2016, less than a year after the child
was born, but he moved back to Atlanta when J. K. M.’s mother (the “mother”) said
she needed help with the baby. The father helped take care of J. K. M. until August
2018, when he moved to Texas for a new job. Two months later, the father learned
that the Division of Family and Children Services (“DFCS”) had removed J. K. M.
from the mother’s custody. The father contacted DFCS and asked for custody, but
DFCS advised that he needed to legitimate the child first. Although the father reached
out to an attorney in November 2018, he was not able to file a petition for
legitimation and custody until August 2019. The trial court granted the petition and
entered an order of legitimation in December 2019.
When DFCS removed J. K. M. from the mother’s custody, he was placed with
the grandmother, who was also raising the mother’s two teenage sons. In the year and
a half prior to the DFCS placement, J. K. M. had spent a lot of time in the
2 (Citations omitted.) Mashburn v. Mashburn, 353 Ga. App. 31, 32 (836 SE2d 131) (2019).
2 grandmother’s home when the mother needed help. The child had some issues with
his speech, and the grandmother enrolled him in speech therapy and completed
exercises with him. In 2019, DFCS recommended that the grandmother be awarded
permanent guardianship of J. K. M. because the mother was not taking the medication
she needed to be able to function. The mother initially agreed with DFCS’s
recommendation. Later, however, the mother opposed the plan, and during the June
2021 final hearing she asserted that the grandmother’s husband had sexually abused
her as a child and described their family as “very dysfunctional,” and asked the court
to award custody to the father. When the grandmother took the stand, she testified
that although she was “not yet” divorced, she had not lived with her husband for
years.
The father visited J. K. M. in November and December 2018, after he moved
to Texas. He saw the child only a few times in 2019, in part because he was living in
Texas and his visitation periods were limited to two hours at a time. Then, once the
COVID-19 pandemic struck in 2020, the father stopped traveling altogether. The
father communicated with J. K. M. on FaceTime, once or twice a month before the
July 2020 hearing and at least once a week after that hearing.
3 At the time of the final hearing in June 2021, the father was living with his wife
of two years and his eight-year-old stepdaughter in a three bedroom home that had
space for J. K. M. The father and his wife both worked, and their combined income
was over $100,000. The father’s community in Texas had adequate medical facilities
and any therapists J. K. M. would need to see, and the father’s insurance would be
able to cover J. K. M. Additionally, the father had found a school that would be
appropriate for the child. The father admitted that he was in arrears as to child
support, but explained that he had set up a garnishment and was thereafter unable to
revise the amount that was taken from his paycheck. He also asserted that he had sent
extra payments in some months.
The grandmother admitted she had no evidence that the father would be an
unfit parent, but testified that because J. K. M. is so bonded to her and his brothers,
she believed that removing him from their home would cause “a lot of psychological
issues.” The grandmother’s daughter, J. K. M.’s aunt, also testified that because of J.
K. M.’s strong bond with the grandmother and his brothers, it was in his best interest
to continue to live with the grandmother.
In August 2021, the court entered a final order awarding permanent legal and
physical custody to the grandmother and visitation rights to the father. In its order,
4 the trial court recognized that the father and his wife had maintained steady
employment in spite of the COVID-19 pandemic and that the father had legitimated
the child. The court further observed, however, that J. K. M. had lived with the
grandmother and his two older brothers, of whom the grandmother has custody
through a permanent guardianship, since 2017. The court found that the child has “a
very strong bond” with the grandmother and his brothers, emphasizing that she had
been his caretaker “for the vast majority of his life.” The court also noted that
although the mother’s instability made her unfit to have custody of the child, the
grandmother allowed her to have access to J. K. M. and the mother-child relationship
would be severed if the child were relocated to Texas.
As to the father, the trial court recognized that he made attempts through the
court system to obtain custody of J. K. M. The court also found, however, that the
father’s attempts to have more involvement in the child’s life were “sporadic and
inconsistent,” emphasizing that the father had not physically visited J. K. M. since
December 2019 and instead relied on video calls to have contact with him. On this
point, the trial court specifically noted that although the COVID-19 pandemic may
have been a factor in the father’s failure to exercise his visitation rights, the father had
traveled to Georgia for court hearings on two separate occasions and made no attempt
5 to visit with J. K. M. during those trips. The court also noted that the father was in
arrears for over $6,500 in child support and was paying only $168 per month despite
a court order requiring him to pay $389 per month.
Based on these facts, the trial court found that there was clear and convincing
evidence that J. K. M. would suffer long-term emotional harm if custody were
awarded to the father. After the trial court entered its final order granting custody to
the grandmother, the father filed this appeal.
As we evaluate this appeal, we are mindful that “under both the United States
and Georgia Constitutions, parents have a fundamental right to the care and custody
of their children.”3 This “is a fiercely guarded right that should be infringed upon only
under the most compelling circumstances.”4
In a custody dispute between a natural parent and a close third-party relative,
like the grandmother in this case, Georgia law recognizes “a rebuttable presumption
that it is in the best interest of a child to award custody to the parent of the child.”5 To
3 Mashburn v. Mashburn, 353 Ga. App. 31, 41 (1) (836 SE2d 131) (2019). 4 (Citation and punctuation omitted.) Clark v. Wade, 273 Ga. 587, 596-597 (IV) (544 SE2d 99) (2001) (plurality opinion). 5 Strickland v. Strickland, 298 Ga. 630, 631 (1) (783 SE2d 606) (2016) (citing OCGA § 19-7-1 (b.1)).
6 overcome this presumption, the relative must show, by clear and convincing
evidence, that parental custody would cause the child either physical harm or
significant, long-term emotional harm.6 “[A] change in home and school will often
be difficult for a child, but some level of stress and discomfort may be warranted
when the goal is reunification of the child with the parent.”7
In its final order awarding permanent custody to the grandmother, the trial
court found that the grandmother had been J. K. M.’s primary caretaker for the vast
majority of his life, that J. K. M. had formed a strong bond with his grandmother and
his two brothers, who resided in the same home, and that this was the only family J.
K. M. had ever known. Even accepting these factual findings as true, however, “the
trial court was not authorized to conclude that the grand[mother] had demonstrated
by clear and convincing evidence that an award of custody to the [father] would cause
either physical harm or significant, long-term emotional harm to [J. K. M.]”.8
6 Id. 7 Clark, 273 Ga. at 598 (IV). See also Bell v. Taylor, 334 Ga. App. 267, 269 (779 SE2d 42) (2015) (the stress associated with moving to a different home and school falls within the level of stress and discomfort that is an acceptable price for reuniting a child and parent). 8 Jewell v. McGinnis, 346 Ga. App. 733, 737 (1) (816 SE2d 683) (2018).
7 Crucially, there was no evidence suggesting that the father was physically abusive or
unfit to care for J. K. M. or that the father’s home, where he lived with his wife and
eight-year-old stepdaughter, would be unsuitable for the child.9 Additionally,
although the trial court described the father’s efforts to establish a relationship with
J. K. M. as “sporadic and inconsistent[,]” the father’s lack of visitation was partly the
result of COVID-19 precautions and the parties agreed that, by the time of the final
hearing, the father and J. K. M. were having video calls at least once a week. As to
financial support, although the trial court found that the father was in arrears on child
support and questioned why he had not provided more support for the child, the court
did not find that the father would be unable to care for the child. Ultimately, we see
no evidence in the record suggesting that J. K. M. would experience “significant,
long-term emotional harm” — beyond the stress and discomfort associated with a
change in home and school — as is required to justify infringing on the father’s
fiercely guarded right to custody of his child.10
9 Compare Braddock v. Lindsey, 355 Ga. App. 700, 705-706 (2) (845 SE2d 731) (2020) (affirming trial court’s decision awarding custody to grandparents over father where child experienced physical harm during visits with father and displayed irritable and negative behavior after visits in the father’s home). 10 See Richello v. Wilkinson, 361 Ga. App. 703 (865 SE2d 571) (2021) (reversing award of custody to grandparents over father because, although the
8 There is ample evidence that the grandmother has been a stable, loving
caregiver for J. K. M. But to establish that she should be awarded custody over the
father’s objection, the grandmother was required to show by clear and convincing
evidence that J. K. M. would suffer physical or significant, long-term emotional harm
if custody were awarded to the father. In the absence of such a showing, we are
required to reverse the trial court’s order. Consequently, the judgment is reversed, and
we remand the case to the superior court for further proceedings consistent with this
opinion.
Judgment reversed and case remanded with direction. Barnes, P. J., and Land,
J., concur.
grandparents had provided a safe and loving home since the mother’s death, there was no evidence that returning custody to the father would cause the children physical or emotional harm or that the father was unable to provide for the children).