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Selvage v. Franklin

Court of Appeals of Georgia, First Division

June 4, 2019

SELVAGE
v.
FRANKLIN.

          BARNES, P. J., MERCIER and BROWN, JJ.

          Brown, Judge.

         Franklin Selvage ("the father") appeals the trial court's order denying his petition to modify custody, child support, and visitation. He contends that the trial court erred in (1) denying him any visitation; (2) refusing to adopt less extreme visitation provisions pursuant to OCGA § 19-9-7; (3) failing to enter a child support award pursuant to OCGA § 19-6-15 and to incorporate a child support worksheet or addendum into the final order; and (4) failing to incorporate a permanent parenting plan into the final order. For the reasons that follow, we vacate the order and remand the case with direction.

         The record shows that the father was involved in a romantic relationship with Latrina Franklin ("the mother") when she became pregnant. The father did not want the child and was not present for the birth in 2008. The father had no contact with either the mother or the child until the mother contacted him in 2009, needing a place to stay after a disagreement with her mother. The mother, the child, and the mother's older child from a different relationship stayed with the father for a week until an incident occurred, leading to the arrest of the father. The father pleaded guilty to family violence battery and third degree cruelty to children for committing acts of domestic violence against the mother in the presence of both of her minor children.[1]As a condition of his probation, the father was ordered to have no contact with the mother or her minor children.

         In 2011, the father violated the no-contact condition of his probation by leaving a letter in the mother's mailbox, and as a result, the mother was granted a twelvemonth family violence protective order on February 14, 2012. The protective order prohibited the father from having any contact with the mother and her two children. On September 21, 2012, the father was charged with violating the family violence protective order, and his probation stemming from the 2010 charges was revoked because the father had contacted the mother. The father entered a plea of nolo contendere and was sentenced to twelve months of probation. A condition of his probation was no violent contact with the mother. In 2013, the mother sought a permanent protective order against the father, which was denied.

         From October 2009 until 2013, the father had no contact with the child. In 2013, the father filed a petition to legitimate the child, seeking to obtain joint legal custody of the child, to establish visitation rights, and to have child support established. In its final order, entered nunc pro tunc May 29, 2013, the trial court granted the legitimation, declaring the father to be the legal father of the child, but found that it was not in the best interest of the child to have any visitation or contact with the child "[d]ue to the [the father]'s criminal history and family violence."[2] The court awarded sole physical and legal custody to the mother and ordered that no child support be paid due to the court's finding that the father lacked the means to pay. Finally, the trial court included a no-contact provision in the order:

[The father] is ordered not to go to the minor child's school and to have no direct or indirect contact with the minor child.
The Court also Orders that [the father] is to have no direct or indirect contact with the minor child's mother . . . nor is [the father] to have any direct or indirect contact with [the mother]'s other minor child. . . .[3]

         In 2015, after the child began exhibiting behavioral problems at school, the mother reached out to the father. The mother began allowing contact between the father and the child, leading to the mother supervising visits between the father and the child. Both the mother and the father testified that the father picked the child up from summer daycare more than once and that the father had unsupervised visits with the child without incident. Sometime in the fall of 2015, the mother cut off all contact after an unspecified disagreement between the parents.

         In 2016, the father filed a petition for modification of custody, child support, and visitation. The petition was dismissed for want of prosecution on March 16, 2016, after the father failed to appear at a scheduled hearing on his petition.

         On March 14, 2017, the father filed another petition for modification of custody, child support, and visitation, seeking to obtain joint physical and legal custody of the child, to establish visitation rights, and to have child support established. The mother opposed the petition, including the request to establish child support. After a hearing, the trial court denied the father's petition in its entirety, finding that "it still is not in this child's best interests to have contact with the [father]." The father now appeals the trial court's final order.

         1. The father first contends that the trial court erred in denying him any visitation rights with his child.

In deciding visitation, the trial court has very broad discretion, looking always to the best interest of the child. When the trial court has exercised that discretion, this [C]ourt will not interfere unless the evidence shows a clear abuse of discretion, and where there is any evidence to support the trial court's finding, this [C]ourt will not find there was an abuse of discretion.

(Citation and punctuation omitted.) Williams v. Williams, 301 Ga. 218, 220 (1) (800 S.E.2d 282) (2017). We must also bear in mind that

[i]t is the express policy of this state to encourage that a child has continuing contact with parents and grandparents who have shown the ability to act in the best interest of the child and to encourage parents to share in the rights and responsibilities of raising their child after such parents have separated or dissolved their marriage or relationship.

         OCGA § 19-9-3 (d). To that end, "only in exceptional circumstances should the noncustodial parent be denied the right of access to his child." (Citation omitted.) Woodruff v. Woodruff, 27 ...


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