Razi v. Burns

354 Ga.App. 608

841 S.E.2d 407

RAZI

v.BURNS.

A19A1936

Court of Appeals of Georgia.

March 16, 2020

Ronald J. Freeman, Riverdale, Clayton County, Janise L. Miller, Atlanta, for Appellant.

Shalonda Burns, for Appellee.

RICKMAN, Judge.

In this child custody action, Father filed a petition to modify child custody in the Superior Court of DeKalb County (the "Georgia Court") and litigated the case for over three years before attempting, unsuccessfully, to voluntarily dismiss the action after several hearings and numerous court orders. He now asserts, among other things, that the Georgia Court failed to establish that it had jurisdiction under the Uniform Child Custody Jurisdiction and Enforcement Act ("UCCJEA") to consider his modification petition and erred in denying his attempt to voluntarily dismiss the case. Because we conclude that the undisputed record fully supports the Georgia Court’s determination that it had jurisdiction under the UCCJEA, and further that the only conflict in this case has been created by Father’s own actions and his legal arguments lack merit, we affirm.

The following facts are undisputed. Father and Mother are the parents of two minor children. Although they never married, Father’s paternal rights were established by a legitimation action in California. In 2013, the parties entered into a conciliation agreement and stipulated order for joint physical and legal custody of the children in the Superior Court of California (the "California Court"). In the agreement, the parties stipulated that Father was the biological father of the children and that California was their home state.

In January 2016, the parties and both minor children relocated to Georgia. That same month, the children were enrolled into a public school in Atlanta.

On November 7, 2016, Father unilaterally disenrolled the children from school and absconded with them to California without Mother’s knowledge or consent. Three days later, Father filed a ex parte petition for modification of child custody¹ in the California Court and obtained an emergency order granting him sole legal custody of the children to enroll them into a California school under the guise that the Atlanta school had refused to do so. Mother filed an application in the California Court seeking an immediate return of the children to Georgia and to her sole custody, and further requesting a transfer of the case to a Georgia court.

Following a hearing, the California Court exercised temporary jurisdiction to issue an emergency order under the UCCJEA.² In the emergency order, the California Court declared Father’s application for ex parte relief "duplicitous" and explicitly stated that both the application and his statements made during the hearing lacked candor and were "not credible." The California Court expressed doubt that California was the home state of the children under the UCCJEA, noting that "[i]t appears that Georgia is the home state because this proceeding was initiated only days after ... Father brought the children to California." It further granted Mother sole legal and physical custody of the children "until further order of a court with jurisdiction under the [UCCJEA]."

The following month, in December 2016, Father started the instant proceedings by filing a verified petition to modify custody in the Georgia Court. In the verified petition, he affirmatively asserted that he was a resident of Fulton County, Mother was a resident of DeKalb County and had been for a period of more than six months preceding the date of the petition, and Georgia was the home state of the minor children.

Mother filed a verified answer in which she also admitted that she was a resident of DeKalb County and had been for a period of more than six months preceding the date of the petition, and that Georgia was the home state of the children. She not only posed no objection to the Georgia Court’s exercise of jurisdiction, but specifically requested that the court "immediately" obtain jurisdiction over the case.

In May 2017,³ the Georgia Court conducted a hearing on Father’s modification petition, a transcript of which is not contained in the record. Following the hearing – and contrary to the position taken by the dissent – the Georgia Court issued a temporary modification order in which it considered its jurisdiction, explicitly finding that both Father and Mother – and thus the children⁴ – resided in Georgia and that jurisdiction and venue were proper in its court. The Georgia Court ordered that Mother retain primary physical and legal custody of the children and granted Father visitation.

A follow-up hearing was scheduled to occur in November 2017, although it was continued several times on Father’s motion. Meanwhile, the infighting between Father and Mother continued, with each parent lodging various allegations of misconduct against the other, and Father filing a motion for the appointment of a guardian ad litem ("GAL") to investigate the claims.

In May 2018, the Department of Family and Children Services ("DFCS") removed the children from their Mother’s home and placed them into Father’s custody following an allegation of abuse against one of the children. Pursuant to a "safety plan" implemented by DFCS, the children were to have no contact with Mother. Both parents filed motions in the Georgia Court seeking an immediate hearing, with the Father asking to terminate Mother’s visitation for the alleged acts of violence, and the mother seeking to hold Father in contempt for "vilify[ing] and defam[ing]" her character with "unfounded" abuse allegations resulting in her loss of custody.

In June 2018, the Georgia Court held an emergency hearing – which also constituted the follow-up hearing – to address all outstanding motions. Noting that it was "not persuaded that either party [was] being entirely truthful" due to their "very contentious relationship," the court held that it "[could not] make a wholly informed custody decision without the benefit of a full investigation."⁵ The court, therefore, directed that the safety plan would be honored, but it appointed a GAL to conduct an investigation and make recommendations concerning child custody and visitation based upon the best interests of the children.

Two months later, the GAL filed a motion in which she stated that it was "imperative" that the court order the children to begin therapy, and that Mother "immediately" be granted weekly visitation. She further requested that she be given an extension of time in which to complete a report so that she may have the opportunity to consult with the children’s therapist and observe their visitation with Mother before making a custody recommendation. The GAL also called into question the Father’s allegations of abuse, noting that they were "unsubstantiated," and stated that Mother had been kept from having any meaningful interactions with the children for over six months.

The Georgia Court scheduled a hearing to consider the GAL’s motion on January 22, 2019.⁶ In the week before the hearing, Father filed a motion for a continuance and his attorney filed a motion to withdraw as counsel, citing "disagree[ments] on litigation strategy." The Georgia Court denied the motion for continuance and objected to the motion for withdrawal – taking notice that it was Father who requested the appointment of the GAL – and directed both Father and his counsel to appear at the hearing.⁷

Father appeared on the day of the hearing and filed a notice of voluntary dismissal without prejudice. The Georgia Court vacated Father’s voluntary dismissal. In so doing, the court held, among other things, that it "ha[d] held multiple hearings in this case at which witnesses testified," that "it appear[ed] from [Father’s] testimony at the most recent hearing that he [was] dissatisfied with the preliminary investigation conducted by the GAL," and that "the filing of the dismissal prior to the hearing was an attempt to halt any further investigation." In a separate order, the court granted the GAL’s motion that the children begin therapy immediately; Mother be given limited, unsupervised visitation with the children; and the GAL receive additional time in order to conduct her investigation. Father now challenges the Georgia Court’s authority to issue those orders.

1. Father argues that the Georgia Court erred in holding that it had subject matter jurisdiction under the UCCJEA to consider the modification petition that Father himself filed in the Georgia Court. Specifically, he contends that the trial court failed to make express findings that Georgia is the "home state" of the children. As set forth below, the Georgia Court properly determined that it had jurisdiction under the UCCJEA to consider the modification petition, and the UCCJEA did not require that the court include in its order express factual findings as to the children’s "home state."

The UCCJEA has been adopted and codified in both Georgia and California. See OCGA § 19-9-40 et seq. ; Cal. Fam. Code § 3400 et seq. The pertinent provision of the UCCJEA provides that a Georgia court may not modify a child-custody determination made by a court in another state unless

a court of this state has jurisdiction to make an initial determination under paragraph (1) or (2) of subsection (a) of Code Section 19-9-61 and ... [a] court of this state or a court of the other state determines that neither the child nor the child’s parents or any person acting as a parent presently resides in the other state.

OCGA § 19-9-63 (2) (emphasis supplied)⁸ ; see also Cal. Fam. Code § 3423 (b). As to the first of these requirements, a court of this state has jurisdiction to make an initial custody determination under OCGA § 19-9-61 (a) (1) if Georgia was "the home state of the child on the date of the commencement of the proceeding." See also Cal. Fam. Code § 3421 (a) (1). "Home state" is defined as "the state in which a child lived with a parent or a person acting as a parent for at...