Mike Callaway v. Wendy Garland
This text of Mike Callaway v. Wendy Garland (Mike Callaway v. Wendy Garland) 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.
Opinion
SECOND DIVISION BARNES, P. J., ADAMS and MCFADDEN, JJ.
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. (Court of Appeals Rule 4 (b) and Rule 37 (b), February 21, 2008) http://www.gaappeals.us/rules/
November 7, 2012
In the Court of Appeals of Georgia A12A1564. CALLAWAY ET AL. v. GARLAND.
MCFADDEN, Judge.
Peggy and Mike Callaway appeal an order returning custody of their grandson
to his mother, Wendy Garland. The Callaways argue, first, that the trial court lacked
jurisdiction due to an earlier appeal; but because they failed to show that appeal costs
had been paid in the earlier appeal, they have failed to show that the earlier appeal
had supersedeas effect. And as reasonable evidence supports the trial court’s decision
to return custody to Garland, we affirm.
Garland was married to the Callaways’ son. In the course of their divorce
proceedings, the trial court awarded custody of the child to the Callaways and granted
Garland visitation. Apparently, Garland filed a pro se notice of appeal of that order.
The Callaways filed the instant action to modify the visitation provisions of the custody award; they sought to suspend Garland’s visitation with her son or to require
the visitation to be supervised. Garland filed a counterclaim, seeking custody of her
son. (The child’s father, who is the Callaways’ son, is not involved in the proceeding.
He is being prosecuted for felony aggravated assault and cruelty to children, and his
bond conditions prohibit him from having contact with the child.)
The trial court awarded Garland custody. The Callaways appeal.
1. Supersedeas.
The Callaways argue that the trial court lacked jurisdiction over the entire
proceeding because Garland had filed a notice of appeal of the original custody order.
“[I]n a civil action, the filing of a notice of appeal does not serve as a supersedeas
until all costs in the trial court have been paid. Here, . . . there is no indication that
[Garland] paid all costs in the trial court.” (Citations omitted.) Lott v. Arrington &
Hollowell, 258 Ga. App. 51, 54 (2) (a) (572 SE2d 664) (2002). Consequently the
Callaways have not shown that supersedeas attached, and we must presume that the
trial court had jurisdiction to enter the order now before us on appeal.
2. Sufficiency of the evidence.
2 The Callaways argue that the trial court erred in granting Garland custody.
Once a court has awarded a third party permanent custody of a child in a proceeding
to which a parent was a party, then
the roles of the parent and the third party reverse; that is, the third party now has the prima facie right to custody as against the parent who has lost the right to custody. The parent can regain custody upon showing by clear and convincing evidence his or her present fitness as a parent and that it is in the best interest of the child that custody be changed.
Durden v. Barron, 249 Ga. 686 (2) (290 SE2d 923) (1982). “If the record contains
any reasonable evidence to support the trial court’s decision on a petition to modify
custody, it will be affirmed.” (Citation omitted.) Lively v. Bowen, 272 Ga. App. 479
(612 SE2d 625) (2005).
(a) Current fitness.
The Callaways argue that Garland presented no evidence of her current fitness.
But the trial court found that Garland was a fit parent who acts in the best interest of
her child, and the record supports that finding. It found that Garland had overcome
certain hardships, has demonstrated that her life is stable, and has demonstrated her
good parenting abilities with her second child, a daughter, with whom her son has
formed a strong bond. The report and testimony of the guardians ad litem support
3 these findings. The guardians testified that Garland was fit to have custody, basing
their conclusion on their observations of her and her home, their discussions with her
witnesses, her job stability and their observations of her care of her second child. This
is reasonable evidence to support the trial court’s conclusion that the evidence of the
mother’s fitness is clear and convincing. See Lively, supra, 272 Ga. App. at 486 (1).
(b) Best interest of the child.
The Callaways argue that there is no evidence that it was in the child’s best
interest for Garland to have custody. But the guardians ad litem expressed concern
that the Callaways had intruded upon Garland’s exercise of her visitation rights with
the child and that the Callaways had subjected the child to repeated questioning in an
attempt to influence him and elicit information that they could use against Garland.
They recommended that custody be awarded to Garland but that, after a period of
time, the Callaways be granted visitation because of their bond with him.
The trial court found that the grandparents had engaged in a pattern of behavior
to alienate the child from his mother; that “[t]he grandparents [had] subjected [the
child] to excessive forensic interviews and ‘play therapy’ in an attempt to gain
information to use against the mother,” even though the child had “suffered no
physical, emotional or sexual abuse at the hands of the mother or in her care;” and
4 that the child’s best interest would be served by living with his mother and his sister.
The record supports that finding.
The guardians reported the Callaways took the child for more than ten
interviews with various people in an effort to substantiate their unfounded suspicions
that the child’s stepfather had molested him. They reported, for example, that the
grandparents took the child to be interviewed by play therapist Linda Silva, whom
they told of their suspicions. While the grandparents remained nearby, Silva
attempted to conduct a forensic interview with the child. On another occasion, also
with the grandparents nearby, Silva asked the child whether the stepfather had tied
him up with a belt. The guardians noted their concern that “with Linda Silva’s
encouragement[,] the grandparents . . . continued to look for any and all imperfections
the mother may have.”
Silva notified the Department of Family and Children Services of the
grandparents’ allegations. The Department made a referral, and the grandparents took
the child for an interview at a child advocacy center. Although the child never made
a conclusive disclosure of abuse, the grandparents asked the child advocacy center
to conduct additional interviews. Staff member Janet Kowalski conducted eight
forensic interviews with the child. At the time the court appointed the guardians ad
5 litem, the grandparents were making arrangements to take the child to yet another
person for forensic interviews. In spite of the multiple interviews, the Department of
Family and Children Services closed the case because the child made no disclosures
of any sexual or physical abuse.
During the course of the hearing, the trial court expressed disapproval of these
activities, saying at one point, “You’re torturing that child,” and at another, “nine
interviews is absolutely insane.” In his order, the trial court found, “The grandparents
have subjected [the child] to excessive forensic interviews and ‘play therapy’ in an
attempt to gain information to use against the mother to restrict her visitation with her
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