Custody. Cobb Superior Court. Before Judge Brantley, Senior Judge.
Jeanney M. Kutner, Alison K. Arce, for appellant.
Nailah Grant McFarlane, for appellee.
BOGGS, Judge. Barnes, P. J., and Branch, J., concur.
Kimberly Chatman appeals from the trial court's order transferring primary physical custody of her son to his father, David Palmer. She also appeals from the trial court's order granting Palmer's motion for attorney fees and litigation expenses under OCGA § 9-15-14. Because the trial court was without authority to modify permanent custody under a family violence protective order, we reverse. We also vacate the award of attorney fees and remand this case to the trial court to reconsider the award in light of our reversal.
The record reveals that the child was born on August 15, 2003, and that Palmer had legitimated him. In a 2007 " Final Order of Custody and Visitation," the trial court awarded the parties joint legal custody of the child with Chatman being named the primary physical custodian. The order also set forth Palmer's schedule of visitation.
The present action began with Chatman's June 22, 2009 petition for a protective order that alleged Palmer pushed her, grabbed her by the throat, and choked her. She asserted that she was in fear of Palmer because he had threatened her and others, had " alcohol or drug problems," dangerous weapons, a criminal record, and had been violent in the presence of children. The trial court entered a " Family Violence Ex Parte Protective Order" enjoining Palmer from approaching Chatman or the child and ordering that Palmer not have any contact with the child. Following a hearing, the trial court entered a " Family Violence Twelve Month Protective Order," effective until July 2, 2010, which allowed Palmer only supervised visits with
the child once a person to supervise was found and agreed upon.
[328 Ga.App. 223] On November 10, 2010, following a hearing on Chatman's request for a permanent protective order, the court entered a " Three Year/Permanent Family Violence Protective Order" pursuant to OCGA § 19-13-4 (c), awarding Chatman full custody of the child and providing that Palmer could have no visitation with the child until a therapist " states in writing that [the] child can visit without fear of physical or mental injury." The therapist arranged supervised visits with Palmer and the child beginning on April 22, 2011.
In November 2011, Chatman moved to temporarily suspend the supervised visitation alleging that the therapist had left the child unsupervised with Palmer, and during that time Palmer hit the child. Palmer denied the allegations in his response to the motion and characterized Chatman's motion as " strategic and retaliatory." In December 2011, the trial court appointed the child a guardian ad litem to assist the court in " reaching relevant decisions concerning custody, visitation, maintenance, education and general welfare of the child raised in this action."
In February 2012, Chatman filed a motion for contempt of the three-year/permanent protective order. Palmer responded and filed his own motion for contempt. The trial court held a hearing on those motions over the course of two days (April 9 and 13, 2012), and on April 13, 2012, it entered a " Temporary Order of Custody and Visitation" to remain in effect until the expiration of the " Three Year/Permanent Family Violence Protective Order" or other order of the court. This temporary order granted the parties joint custody of the child and named Chatman primary physical custodian (as was originally awarded in the 2007 final order of custody). In finding that there was no credible evidence that Palmer was violent toward the child, the court granted Palmer " transitional supervised ...