Geiger v. Allmond

902 S.E.2d 226

GEIGER

v.ALLMOND (two cases).

A24A0061

A24A0062

Court of Appeals of Georgia.

May 23, 2024

Andrew John Lavoie, Atlanta, for Appellant.

Gabriel T. Cliett, Jimmy Thomas Howell Jr., Madison Brynn Everett, for Appellee.

Doyle, Presiding Judge.

[1–3] In these consolidated cases, Ashley Geiger ("the Mother") appeals from an order granting permanent custody of her two minor children to Patti Allmond, the children’s paternal grandmother ("the Grandmother"). She contends that the evidence was insufficient to support the custody award under the standard in OCGA § 19-7-1 (b.1). Based on the record before us, we agree.

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. We review de novo, however, the legal conclusions the trial court draws from the facts.¹

So viewed, the record shows that the Mother was in a relationship with the children’s father, Travis Wells ("the Father"), for 22 years, but they never married. Throughout this time, they were "toxic from the start" and had difficulties in their relationship. Despite this, they had two children, a son bom in 2010, and a daughter born in 2014. The Mother was the primary caregiver.

Eventually, the relationship soured to the point that in April 2021, the Mother fled what she called a verbally and emotionally abusive relationship and left the family home with the children, moved in with the maternal grandmother in Florida, approximately six or seven hours away by car. Soon thereafter, the Father filed a legitimation petition, and in July 2021, a consent order on legitimation was entered, granting the Father primary physical custody with the parents having joint legal custody, and the Mother having weekend visitation once per month. The Mother was pro se at the time.

By November 2021, the Father had denied the Mother visitation, so the Mother filed a motion for contempt, seeking to enforce her visitation rights.² The following month, the Father filed an emergency petition to modify custody and suspend the Mother’s visitation based on his suspicion that the daughter had been sexually abused.³ The Father had learned that the maternal grandmother’s boyfriend was living in the house where the Mother was staying, the boyfriend had a conviction for sexual battery of a minor, and the couple’s daughter had complained of a molluscum infection on various parts of her body. The daughter was physically examined and a forensic interview was conducted; no allegations of abuse were disclosed or confirmed. The physical exam concluded that the molluscum was common in children and of an indeterminate cause, and the Mother explained that the daughter had suffered from it prior to any interaction with the boyfriend.

Following this process, the Mother was temporarily awarded custody of the children, but eventually offered to give custody of the children to the Grandmother, who ultimately, due to the order awarding the Father temporary custody in July 2021, became the children’s primary caregiver for the approximate year and a half before the final hearing.

In March 2022, the court appointed a guardian ad litem ("GAL"), and shortly before the GAL’s report was issued, the Grandmother filed a motion to intervene and a petition to obtain primary custody of the children.⁴ In December 2022, the trial court held an evidentiary hearing on the Grandmother’s motion to intervene and petition for custody, as well as the Mother’s contempt motion and the Father’s motion to modify custody. During the hearing, the GAL testified and recommended that primary physical custody be awarded to the Mother; the Moth- er, Father, and Grandmother also testified. Thereafter, the trial court entered an order granting the Grandmother’s motion to intervene, awarding permanent custody to the Grandmother with visitation to the Mother and Father on alternating weekends.

The Mother now appeals and argues that the evidence was insufficient to support the custody award to a third-party under OCGA § 19-7-1 (b.1). Based on the record before us, we agree.

[4–6] OCGA § 19-7-1 (b.1) provides as follows:

Notwithstanding … any other law to the contrary, in any action involving the custody of a child between the parents or either parent and a third party limited to grandparent [and other relatives], parental power may be lost by the parent … if the court hearing the issue of custody, in the exercise of its sound discretion and taking into consideration all the circumstances of the case, determines that an award of custody to such third party is for the best interest of the child or children and will best promote their welfare and happiness. There shall be a rebuttable presumption that it is in the best interest of the child or children for custody to be awarded to the parent or parents of such child or children, but this presumption may be overcome by a showing that an award of custody to such third party is in the best interest of the child or children. The sole issue for determination in any such case shall be what is in the best interest of the child or children.

Thus, the Code establishes

a rebuttable presumption that it is in the best interest of a child to award custody to the parent of the child. To overcome this presumption, a third-party relative must show, with clear and convincing evidence, that the child will suffer either physical harm or significant, long-term, emotional harm if custody is awarded to the parent. In addressing the issue of harm, trial courts must consider a variety of factors beyond biological connection or generalized notions of parental fitness. They also must consider the parental needs and the circumstances of the child in question, including (1) who are the past and present caretakers of the child or children; (2) with whom has the child or children formed psychological bonds and how strong are these bonds; (3) have the competing parties evidenced interest in, and contact with, the child or children over time; and (4) are there any unique medical or psychological needs of the child or children.⁵

[7–9] With respect to the harm in this context, it must meet the above standard and not be

merely social or economic disadvantages. Thus, under Georgia law, the focus of such a determination of unfitness must be the parent’s ability to provide for the children in a manner sufficient to preclude the need for an entity of the government to intervene and separate the children from the parent, and a court is not permitted to terminate a parent’s natural right to custody merely because it believes that the children might have better financial, educational, or moral advantages elsewhere, that is, the parent’s ability to raise her children is not to be compared to the fitness of a third person.⁶

Here, the trial court based its judgment on findings that the Mother:

[left] the children alone with a convicted sexual predator, … contrary to medical advice removed the minor children from doctor prescribed medication, which resulted in severe mental and physical health issues for [the son], … failed to provide necessities for the children, has gone prolonged periods without speaking to the children, and has constantly put her interest before the children’s. [The Mother] also returned the children to [the Grandmother] multiple times during her parenting time, admitting that she cannot care for the children. Furthermore, [the Mother] continues to use illegal substances. At this time, [the Mother] poses a significant danger to the minor children’s physical and emotional well being.

The Mother challenges these findings, and we address each one below.

[10] (a) Mother’s drug use. With respect to the Mother’s drug use, she conceded that she had used drugs in the past, and there was evidence that during her relationship with the Father she smoked marijuana on a daily basis. But the Mother explained that she had not used drugs since early 2021, and this was confirmed by a negative hair follicle drug test in July 2021. On the other hand, the Grandmother candidly admitted that she had sought treatment at least twice for an addiction to prescription pills. She appeared to have no current issues with abuse, but she conceded that she currently takes klonopin daily and a "Tylenol Number 3" as needed for neck pain, pursuant to active prescriptions. The GAL expressed no concern with either the Mother’s or the Grandmother’s current substance use, and the Mother was the only party to have submitted to drug testing in the recent time frame. Further, since the parents separated, the Mother’s situation has stabilized — she has married,⁷ has an appropriate residence, and has a fulltime salaried job as a production manager. This record fails to demonstrate, by clear and convincing evidence, that the Mother’s past or present drug use will cause physical or significant long term emotional harm to the children.

[11] (b) Exposure to a "sexual predator."

There was evidence that immediately after leaving the Father, the Mother moved to Florida to live with the maternal grandmother, who had a live-in boyfriend with a conviction for sexual battery. The Mother successfully objected to admission of the uncertified conviction showing that the offense was against a victim under the age of 12, so beyond the fact that he was referred to as a "registered sex offender" during the hearing, there was no evidence regarding the nature of the crime or the victim, and there were no legal requirements that he could not be around children. The Mother agreed that she knew of the boyfriend’s criminal history and that allowing him around the children was a lapse in her judgment, but she explained that she was escaping the verbally and emotionally abusive environment in her family home, she slept with the children in her room, and...