HILL et al.
BARNES, P. J., MCMILLIAN and MERCIER, JJ.
and Yvonne Hill, the maternal grandparents of K. L., a minor
child, appeal the trial court's award of sole legal
custody of K. L. to her father, Gerren Iles
("Father"). The Hills assert that the trial court
erred in awarding Father sole legal custody of K. L. because
(1) the only issue before the trial court was Father's
motion to vacate the Hills' guardianship of K. L. and (2)
K. L.'s mother ("Mother") was not given notice
of the pending action or hearing date. For the reasons
that follow, we vacate and remand.
review a trial court's order regarding a change in
custody or visitation for an abuse of discretion. Jackson
v. Sanders, 333 Ga.App. 544, 558 (5) (773 S.E.2d 835)
(2015). However, whether a trial court is authorized to
modify custody is a question of law, and we owe no deference
to the trial court's ruling. See Hammonds v.
Park, 319 Ga.App. 792, 794 (3) (735 S.E.2d 801) (2012).
limited record shows that K. L. was born in 2007. Father was
not listed on the birth certificate. Father and Mother later
married in 2008 and moved to Texas to live with Father's
parents. In 2009, Mother took K. L. to Georgia, and in 2010,
Mother sent K. L. to live with the Hills. In July 2012, with
Mother's consent, the Hills filed a petition for
temporary letters of guardianship of K. L. in the Probate
Court of Walton County. Because the Hills alleged that
Father's address was unknown, he was served by
publication. The probate court then granted the
over two years later, in August 2014, Father filed a motion
to vacate the order granting the temporary letters of
guardianship. Father also attempted to introduce the results
of a DNA test indicating he was the biological father of K.
L. The Hills objected to Father's motion, and Father
later moved for a judgment on the pleadings. On May 12, 2015,
the probate court denied Father's motion, finding that,
although the marriage of the mother and biological father of
a child born out of wedlock and recognition of the child by
the father shall render the child legitimate, the father must
still prove he is the biological father. The probate court
further found that the DNA report was insufficient to
establish that Father was K. L.'s biological father
because the report did not include a client identification
form or chain of custody.
timely appealed to the Superior Court of Walton County. In
June 2016, the trial court held a hearing and found the chain
of evidence for Father's initial DNA test was inadequate
and ordered that a new test be completed. During a later
hearing in October 2016, Father's paternity was
confirmed. The trial court then issued an order
terminating the Hills' temporary letters of guardianship,
granting Father full legal custody of K. L., and providing
for Father's visitation with K. L. until she finished the
remainder of the school semester in Georgia. This appeal
their first enumeration of error, the Hills assert that the
trial court was not authorized to award custody to Father
because the only issue before the trial court was
Father's appeal of the denial of his motion to vacate the
temporary letters of guardianship. Georgia law is clear that
any complaint seeking to obtain legal custody of a child
"shall be brought as a separate action." OCGA
§ 19-9-23 (a). See also Hammonds, 319 Ga.App.
at 794 (3) (mother's oral motion for change in custody
failed to meet requirements of OCGA § 19-9-23 where it
was brought in response to a contempt petition and not in the
county where father resides); Whitlock v. Barrett,
158 Ga.App. 100, 102-03 (279 S.E.2d 244) (1981) ("we
know of no authority for a superior court to, sua sponte,
change the nature of a case from one involving an application
for letters of guardianship to one involving a parent's
right to custody over her child"). Accordingly, it was
error for the trial court to grant a change in custody, and
we therefore vacate that portion of the trial court's
order. See Hammonds, 319 Ga.App. at 795 (3).
Based on our holding in Division 1, we need not reach the
Hills' second enumeration of error.
vacated and case remanded.
Barnes, P.J., concurs Mercier, J., concurs specially.
Mercier, Judge, concurring specially.
concur fully with the majority opinion, I write separately to
further explain my analysis of this case.
on the facts as outlined in the majority, it is undisputed
that the mother and father are still legally married and,
other than the temporary guardianship at issue in this case,
it does not appear from the record that there has been any
other proceeding that, as of yet, ascertained and declared
that either parent had lost or given up any custodial rights
to the child or, in the alternative, that one parent has a
superior custody right over the other parent or a specified
third party. Therefore, it necessarily follows that once the
trial court determined that the temporary guardianship should
be terminated, custody would be returned to the parents as
both are still the natural guardians of the child. See
Whitlock v. Barrett, 158 Ga.App. 100, 103 (279
S.E.2d 244) (1981). Therefore, the most the trial court could
have done would have been to return full custody to both
parents. Any delineation of custody and/or visitation between
the parents or to a third party would have exceeded the trial
court's authority. See id. (finding that "neither
the probate court of that county nor the superior court
hearing an appeal from the probate court had the jurisdiction