Floyd v. Gibson

788 S.E.2d 84, 337 Ga. App. 474, 2016 WL 3418973, 2016 Ga. App. LEXIS 359
CourtCourt of Appeals of Georgia
DecidedJune 21, 2016
DocketA16A0171
StatusPublished
Cited by14 cases

This text of 788 S.E.2d 84 (Floyd v. Gibson) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Floyd v. Gibson, 788 S.E.2d 84, 337 Ga. App. 474, 2016 WL 3418973, 2016 Ga. App. LEXIS 359 (Ga. Ct. App. 2016).

Opinion

Peterson, Judge.

This is the second time this child custody case has come before us. The first time, the trial court’s order awarding custody of the children to their maternal grandmother instead of their father left us unsure whether the trial court had made all of the required findings and considered all of the applicable factors. We vacated the order and remanded for the trial court to consider all the factors and make explicit findings. But on remand, the trial court instead adopted a proposed order from the grandmother that simply edited the prior order (based entirely on evidence now well over two years old) to include, as the trial court put it, the required “magic words.” The father argues that the trial court’s new order applied an incorrect standard and that the evidence did not support the court’s custody determination. We again vacate the trial court’s order because the court failed to consider substantively all the circumstances of the case in accordance with our previous instruction, and remand for further proceedings consistent with this opinion.

[475]*475Shannon Lee Floyd (“the father”) and the mother, who were never married, have three minor children. The children lived with both parents until the parents separated in 2012, after which the children remained with their mother. Shortly thereafter, the children’s mother was granted a temporary protective order against the father after he allegedly threatened to kill her and the children. The father was not separately charged for any crime associated with that incident and disputes the version of facts that formed the basis for the protective order. The mother maintained custody of the children but continued to leave them with the father for weekend visitations. In May 2013, the children were removed from their mother’s custody after she suffered a drug overdose and were placed with Sherry Anne Gibson, the children’s maternal grandmother (“the grandmother”).

Soon thereafter, the grandmother petitioned for custody. The children moved into the grandmother’s home, which was shared with the grandmother’s 16-year-old son and the grandmother’s husband, who had recently been released from prison. The father answered, counterclaimed for custody, and began the legitimation process. During that process, it was revealed that the father was being treated with methadone, although the father disputed that drug addiction was the reason for the methadone treatment. The father was living at his mother’s house, was employed, and had been paying child support. The judge awarded temporary custody to the grandmother because the father had not yet legitimated the children. Several months later, an order was entered legitimating the children.

In October 2013, the trial court held a permanent custody hearing. After receiving requested proposed orders from the parties, on November 5, 2013, the court entered the grandmother’s proposed order awarding her custody of the children.1 The father moved for a new trial, which was denied. The father appealed, arguing the trial court had applied an incorrect standard and that the evidence did not support the court’s custody determination.

On March 19, 2015, we vacated the trial court’s order and remanded for reconsideration, holding that it was not apparent whether the trial court had “made the requisite determination that the children would suffer ‘either physical harm or significant, long-term emotional harm’ ” if placed in the father’s custody as required by Clark v. Wade, 273 Ga. 587, 598 (IV) (544 SE2d 99) (2001) (plurality decision), or whether the trial court had “considered the four factors set forth in Clark with regard to custody determinations in cases in [476]*476which certain third-party relatives seek custody from parents.” Floyd v. Gibson, 331 Ga. App. 301, 303-04 (1) (771 SE2d 12) (2015) (physical precedent only).

Following remand, the father moved for a hearing, which the trial court granted. At the hearing, the court discussed with the parties how to proceed. The grandmother argued that the vacated order simply needed to be amended. The father objected, noting that all the evidence in the case was, at that time, nearly two years old, and that a change in circumstances warranted an emergency custody hearing. The trial court indicated that it did not intend to hear any new evidence, and that it would review a proposed order from the grandmother based upon the same evidence that had been presented nearly two years earlier. But the trial court also stated that it would set a hearing on the emergency custody motion.

Less than a week later, the trial court e-mailed the parties stating that it did not “see a need to re-litigate the case” and that it simply intended to amend its original order to “comply with what the Court of Appeals wants,” which it described as simply adding “magic words” to the prior order. The trial court judge further stated, “I stand by my ruling, I just need an amended order to comply with the [Court of Appeals].”

Less than two weeks later, on July 22, 2015, the trial court entered a final order, drafted by the grandmother’s counsel, awarding permanent custody to the grandmother. The trial court attached an “addendum” to that final order, however, stating that the court had “concerns that the language expressed [in the order] may not directly address the reasons the Court of Appeals vacated the prior Order.” The trial court also observed that the order was “based on the testimony before the Court on October 17, 2013” and that there “may have been substantial changes since that date[.]” For this reason, the trial court stated it would hold a hearing, though the record does not reflect any such hearing. Nevertheless, based on that well-aged evidence that may have changed substantially, the trial court found “it likely that future physical and mental harm may be done to the children if placed in the father’s custody” and issued the order awarding permanent custody to the grandmother. This appeal followed.

1. The father correctly argues that the trial court failed to apply the proper standard in determining custody. In Georgia,

a parent has a right of custody to h[is] child[ren] in preference to a third party unless there is clear and convincing evidence that the parent is unfit. The focus of such a determination of unfitness must be the parent’s ability to provide [477]*477for the child[ren] in a manner sufficient to preclude the need for an entity of the government to intervene and separate the child[ren] from the parent, and a court is not permitted to terminate a parent’s natural right to custody merely because it believes that the child[ren] might have better financial, educational, or moral advantages elsewhere, that is, the parent’s ability to raise h[is] child[ren] is not to be compared to the fitness of a third person.

Harris v. Snelgrove, 290 Ga. 181, 182 (2) (718 SE2d 300) (2011) (citations omitted). OCGA § 19-7-l(b.l), which governs custodial disputes between the father and grandmother, establishes a rebuttable presumption that it is in the best interest of the children for custody to be awarded to the father. OCGA § 19-7-1(b.1).

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Cite This Page — Counsel Stack

Bluebook (online)
788 S.E.2d 84, 337 Ga. App. 474, 2016 WL 3418973, 2016 Ga. App. LEXIS 359, Counsel Stack Legal Research, https://law.counselstack.com/opinion/floyd-v-gibson-gactapp-2016.