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Jewell v. McGinnis

Court of Appeals of Georgia, Fifth Division

June 22, 2017

JEWELL
v.
McGINNIS et al.

          MILLER, P. J., MCFADDEN, P. J., and BETHEL, J.

          Miller, Presiding Judge.

         This is the second appearance of this grandparent custody case in this Court. In Jewell v. McGinnis, 333 Ga.App. 108 (775 S.E.2d 539) (2015) ("Jewell I"), [1] this Court vacated the superior court's order granting joint legal custody to the mother and the paternal grandparents, with primary physical custody to the grandparents. Further, in Jewell I, this Court remanded the case with direction for the superior court to make the statutorily required factual findings by clear and convincing evidence under OCGA § 19-7-1 (b.1). On remand, the superior court entered a new order (the "Revised Custody Order"), which contained factual findings and again granted joint legal custody to the mother and grandparents and primary physical custody to the grandparents.

         1. The mother appeals from the superior court's Revised Custody Order, contending, inter alia, that OCGA § 19-9-6 does not authorize an award of joint legal custody to a parent and a third party. We agree, and therefore we reverse the award of joint legal custody in this case and remand for further proceedings consistent with this opinion.

         The Supreme Court of Georgia and this Court have both held that a third party may have sole legal custody of a child when no parent is suitable for custody; however, Georgia statutory law only supports joint legal custody arrangements between parents. Stone v. Stone, 297 Ga. 451, 455 (774 S.E.2d 681) (2015); Sheffield v. Sheffield, 338 Ga.App. 667, 669 (791 S.E.2d 428) (2016); Marks v. Soles, 339 Ga.App. 380, 386 (2) (793 S.E.2d 587) (2016). See also OCGA § 19-9-6 (5) ("Joint legal custody means both parents have equal rights and responsibilities for major decisions concerning the child[.]") (punctuation omitted.); OCGA § 19-9-3 (a) (1) (setting out general custody guidelines and recognizing that joint custody considerations remain with the child's parents).

         The superior court had no power to grant joint legal custody to the mother and the paternal grandparents. Consequently, we must reverse that award and remand this case for further proceedings. Stone, supra, 297 Ga. at 455.

         2. In light of our holding in Division 1, we need not address the mother's remaining argument.

         Judgment reversed and case remanded with direction.

          Bethel, J, concurs

          McFadden, Presiding Judge, concurring specially.

         I agree that we must reverse and remand. I concur fully in Division 1: the trial court was not authorized to award joint legal custody to a parent and a third-party. But I disagree with Division 2. We must address - and reverse - the trial court's finding "that the child would suffer both physical and significant emotional harm if she were placed in the custody of [the mother]."

         As the majority notes, this case is now before us for the second time. The first appeal was by the mother from an order "awarding joint legal custody of her daughter, C. M., to Jewell and to the child's paternal grandparents, Stephen and Diane McGinnis, with primary physical custody to the grandparents." Jewell v. McGinnis, 333 Ga.App. 108 (775 S.E.2d 539) (2015). "[W]e vacate[d] and remand[ed] the case for the trial court to make ... findings under the required standard." Id. at 111 (3). Those findings included whether "parental custody would harm the child physically or emotionally." Id. That finding is required by a gloss our Supreme Court put on the grandparent custody statute, OCGA § 19-7-1 (b.1), when the statute's constitutionality was challenged. Clark v. Wade, 273 Ga. 587 (544 S.E.2d 99) (2001).

         On remand after Jewell I, the trial court found the requisite prospect of harm. The mother has enumerated that finding as error. And error it is. It is error that would surely drive the proceedings on remand and so generate a third appeal and a third remand.

         Such delay is always a denial of justice. But delay is particularly harmful to children. This child was six years old when her grandparents first filed an emergency motion seeking custody of her. She is now almost ten. This ...


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