(Ga. L. 1978, p. 1957, § 4; Ga. L. 1983, p. 3, § 52; Ga. L. 2019, p. 904, § 2/SB 190.)
The 2019 amendment, effective July 1, 2019, rewrote this Code section, which read: "(a) Except as otherwise provided in this Code section, after a court has determined who is to be the legal custodian of a child, any complaint seeking to obtain a change of legal custody of the child shall be brought as a separate action in the county of residence of the legal custodian of the child.
"(b) A complaint by the legal custodian seeking a change of legal custody or visitation rights shall be brought as a separate action in compliance with Article VI, Section II, Paragraph VI of the Constitution of this state.
"(c) No complaint specified in subsection (a) or (b) of this Code section shall be made:
"(1) As a counterclaim or in any other manner in response to a petition for a writ of habeas corpus seeking to enforce a child custody order; or
"(2) In response to any other action or motion seeking to enforce a child custody order.
"(d) The use of a complaint in the nature of habeas corpus seeking a change of child custody is prohibited."
Cross references.- Power of court in proceeding on writ of habeas corpus sought on account of detention of spouse or child, § 9-14-2.
Code Commission notes.- Pursuant to Code Section 28-9-5, in 1985, "maner" was changed to "manner" in paragraph (c)(1).
Law reviews.- For article surveying developments in Georgia domestic relations law from mid-1980 through mid-1981, see 33 Mercer L. Rev. 109 (1981). For annual survey of domestic relations cases, see 57 Mercer L. Rev. 173 (2005). For annual survey on domestic relations, see 65 Mercer L. Rev. 107 (2013). For article, "2019 Legislative Review," see 24 Ga. St. B.J. 28 (June 2019).
JUDICIAL DECISIONS
Plain meaning of O.C.G.A. § 19-9-23(a) is that an action by the noncustodial parent to modify visitation with a minor child must be brought in the county of residence of the custodial parent. Bennett v. Wood, 188 Ga. App. 630, 373 S.E.2d 645 (1988); Rogers v. Baudet, 215 Ga. App. 214, 449 S.E.2d 900 (1994).
Custody can only be relitigated where legal custodian resides.
- Georgia courts will refuse to provide forum for relitigating custody except where legal custodian resides. Yearta v. Scroggins, 245 Ga. 831, 268 S.E.2d 151 (1980).
As a matter of public policy, Georgia courts refuse to provide forum in Georgia for relitigating custody when noncustodial parent resident in Georgia has improperly removed child from physical custody of custodial parent who resides in another state. Etzion v. Evans, 247 Ga. 390, 276 S.E.2d 577 (1981).
Trial court erred by granting a parent's complaint for modification of child custody and support and changing custody, which was filed in that parent's county of residence, as that county was not the jurisdiction wherein the issue of custody and support was originally litigated and the opposing parent never waived the challenge to the jurisdiction of the trial court via a pro se letter, which merely acknowledged receipt of the complaint; as a result, the judgment granting the change of custody was reversed and the case was remanded to the trial court with directions for the trial court to transfer the case to the trial court of the proper county. Hatch v. Hatch, 287 Ga. App. 832, 652 S.E.2d 874 (2007).
Jurisdiction when county services department is legal custodian.
- When the legal custodian of a child is a county Department of Family and Children Services, any action seeking a change in custody is to be brought in that county. Any other county, including the county of residence of the child, is without jurisdiction to grant any relief involving custody including a writ of habeas corpus. DeKalb County Dep't of Family & Children Servs. v. Queen, 252 Ga. 274, 312 S.E.2d 800 (1984).
Juvenile court did not retain jurisdiction.
- Although a great aunt and great step-uncle argued that the trial court erred in exercising subject matter jurisdiction in a custody matter at a time when the juvenile court had exclusive original jurisdiction, there was no order of the superior court transferring the petition to the juvenile court, and the jurisdiction obtained during an original deprivation proceeding did not serve to retain such jurisdiction; therefore, the juvenile court did not retain jurisdiction. The complaint for permanent custody filed by the grandmother and the step-grandfather was not in the nature of a deprivation petition. Wiepert v. Stover, 298 Ga. App. 683, 680 S.E.2d 707 (2009), overruled on other grounds, Artson, LLC v. Hudson, 322 Ga. App. 859, 747 S.E.2d 68 (2013).
Jurisdiction to consider custody modification petition and contempt motion together.
- In the absence of evidence that the husband objected to the trial court's decision to consider the contempt motion together with the custody petition, his consent was inferred. Further, because the custody petition was filed as a separate action in the husband's county, the requirements and purpose of O.C.G.A. § 19-9-23 were satisfied. Saravia v. Mendoza, 303 Ga. App. 758, 695 S.E.2d 47 (2010).
Binding findings on parties when proceeding in another county.
- When a mother filed a motion for change of custody in the father's home county (Fulton), and the Fulton court ruled there was a material change in circumstances, and the father then filed a motion for change of custody in the mother's county (DeKalb), the Fulton ruling had a preclusive effect on the material change of circumstances issue under the doctrine of collateral estoppel. However, the mother could present evidence of facts arising after that judgment. Allen v. McGuire, 339 Ga. App. 219, 793 S.E.2d 151 (2016).
Jurisdiction for modification of divorce decree.
- Georgia Court of Appeals finds it necessary in the context of divorce and alimony cases to depart from the general rule that a contempt action must be brought in the offended court, thus, it now holds that when a superior court other than the superior court rendering the original divorce decree acquires jurisdiction and venue to modify that decree, it likewise possesses the jurisdiction and venue to entertain a counterclaim alleging the plaintiff is in contempt of the original decree. Colbert v. Colbert, 321 Ga. App. 841, 743 S.E.2d 505 (2013).
Trial court properly acquired jurisdiction to modify a divorce decree, independent of the contemporaneous motion for contempt, because the mother, a nonresident, voluntarily instituted the suit in the jurisdiction of the trial court; therefore, the mother submitted to the court's jurisdiction for all purposes. Colbert v. Colbert, 321 Ga. App. 841, 743 S.E.2d 505 (2013).
Litigation of custody when temporary guardian appointed.
- Boyfriend, who had been appointed temporary guardian of the child, was not the child's "legal custodian" as that term was used in the Georgia Child Custody Intrastate Jurisdiction Act, O.C.G.A. § 19-9-20 et seq., and, thus, the provisions of the Act, including the Act's venue provisions, did not apply; accordingly, the trial court erred in dismissing the grandmother's petition for custody of the child on the ground that venue was not proper in the county where the mother was incarcerated but would have been proper where the temporary guardian, the boyfriend, resided, as application of the general venue rules governing venue in civil cases, contained in the Georgia Constitution, showed that since the mother was a necessary party to the grandmother's custody action, filing the action in the county where the mother was incarcerated was proper. Gordon v. Gordon, 269 Ga. App. 224, 603 S.E.2d 732 (2004).
Waiver of challenge to venue.
- In an action to establish paternity, the mother waived any challenge to venue when she consented to an adjudication of custody in her complaint and made no objection to venue in the trial court until she apparently raised it during closing argument. Ganny v. Ganny, 238 Ga. App. 123, 518 S.E.2d 148 (1999).
Father waived defense to lack of venue in mother's counterclaim for modification of child support by failing to file a motion to dismiss in a timely and expeditious manner. Houston v. Brown, 212 Ga. App. 834, 443 S.E.2d 3 (1994).
Venue shown.
- Mother's petition for modification of custody was properly filed in and decided by the Superior Court of Cherokee County because there was evidence that supported the superior court's determination that the father was a resident of Cherokee County when the mother filed her modification petition; the father was served at his Cherokee County apartment, and the superior court orally ruled that while the father had the intent to return to another county, the father was a resident of Cherokee County until the father's physical presence changed. Viskup v. Viskup, 291 Ga. 103, 727 S.E.2d 97 (2012).
Motion filed in proper county.
- Motion for a change in custody was not filed in the wrong county as the wife originally lived in the county in which the action was initiated, the wife moved to another county while the case was pending, and the wife waived any personal jurisdiction and venue defenses by entering into a consent order regarding custody and waiting many months before asserting the defense. Andersen v. Farrington, 291 Ga. 775, 731 S.E.2d 351 (2012).
Habeas corpus.
- O.C.G.A. § 19-9-23(d) governs the situation where a party is seeking to change legal custody from someone who has permanent custody by court order and is not applicable when the mother who has permanent custody seeks the return of her children from a person to whom she has given temporary custody. Alvarez v. Sills, 258 Ga. 18, 365 S.E.2d 107 (1988).
"Action or motion seeking to enforce child custody order."
- Complaint for modification of support is not an "action or motion seeking to enforce a child custody order" under O.C.G.A. § 19-9-23(c)(2). Dixon v. Dixon, 183 Ga. App. 756, 360 S.E.2d 8, cert. denied, 183 Ga. App. 905, 360 S.E.2d 8 (1987).
Counterclaim for change of custody.
- Trial court erred in entertaining a counterclaim for a change of custody in the county of legal residence of the noncustodial parent even though the custodial parent had brought her action for a change of visitation rights in the county of residence of the noncustodial parent. Jones v. Jones, 178 Ga. App. 794, 344 S.E.2d 677 (1986), aff'd, 256 Ga. 742, 352 S.E.2d 754 (1987).
When the custodial mother sued the father in his county of residence for modification of child support, the father, in filing a counterclaim seeking to change custody, violated two provisions of O.C.G.A. § 19-9-23(a): (1) by failing to bring a separate action to have custody changed; and (2) by failing to bring such an action in the county of residence of the legal custodian of the child. Wilson v. Baldwin, 239 Ga. App. 327, 519 S.E.2d 251 (1999); Roach v. Kapur, 240 Ga. App. 558, 524 S.E.2d 246 (1999), aff'd, 272 Ga. 767, 534 S.E.2d 420 (2000).
Custodial mother did not waive the mandatory provisions of subsections (a) and (c) of O.C.G.A. § 19-9-23 by the consent transfer of her suit for contempt, including her claim for a change in custody to the father's county of residence. Kapur v. Roach, 272 Ga. 767, 534 S.E.2d 420 (2000).
Trial court erred in granting a change of primary physical custody to a mother, based on the mother's modification of custody counterclaim, as the father's petition sought only a clarification as to the days that the father was to have custody under the parties' joint custody arrangement, as well as an order awarding the father child support, and accordingly, the mother could only obtain such relief by way of a separate action pursuant to O.C.G.A. § 19-9-23; the fact that the parties disagreed over whether the child should be educated at a public school or at a private school did not constitute a material change of circumstances that affected the child's welfare, and accordingly, there was no justification for a change of custody. Terry v. Garibaldi, 274 Ga. App. 405, 618 S.E.2d 6 (2005).
Under the plain language of O.C.G.A. § 19-9-23, the trial court erred in denying a motion to dismiss a parent's counterclaim seeking a change in physical custody and in finding that the evidence was sufficient to support the custody determination. Seeley v. Seeley, 282 Ga. App. 394, 638 S.E.2d 837 (2006).
Because a change of custody could not be asserted as a counterclaim, pursuant to O.C.G.A. § 19-9-23, the trial court erred in denying a father's motion to dismiss the claim asserted by a mother, and the father's failure to raise the matter as a defense did not act as a waiver as he filed no response to the counterclaim; moreover, the fact that the court was mistaken in dismissing the mother's original Fulton County action did not excuse the mother from appealing that ruling nor did it authorize the mother to pursue the claim as a counterclaim, especially when the statute and case law were so definitive that such a counterclaim was simply not permitted. Bailey v. Bailey, 283 Ga. App. 361, 641 S.E.2d 580 (2007).
Custody award was affirmed because even if the father's decision to file a petition for change of custody was predicated on the mother's successful petition for habeas corpus, the father's petition was not a forbidden "response" to the mother's petition for purposes of O.C.G.A. § 19-9-23(c)(1). Alberti v. Alberti, 320 Ga. App. 724, 741 S.E.2d 179 (2013).
Counterclaim seeking a change of custody in an action brought by the custodial parent in the county of the noncustodial parent's residence is improper because it is not a separate action and it is not brought in the county of the custodial parent's residence. The Supreme Court of Georgia has explained that O.C.G.A. § 19-9-23 has been enacted by the Georgia legislature to curtail the practice of allowing the noncustodial parent to relitigate custody in the noncustodial parent's own jurisdiction. Colbert v. Colbert, 321 Ga. App. 841, 743 S.E.2d 505 (2013).
Seeking change of custody in counterclaim.
- Father's petition for change of custody in counterclaim to mother's petition to enforce custody was not proper. Pruitt v. Hooks, 163 Ga. App. 892, 296 S.E.2d 193 (1982).
Any action for a change of legal custody shall be brought as a separate action in the county of residence of the legal custodian of the child, and the trial court cannot entertain a counterclaim for a change of custody in the county of legal residence of the non-custodial parent. Bullington v. Bullington, 181 Ga. App. 256, 351 S.E.2d 700 (1986).
Complaint seeking a change of legal custody of a child may not be brought in response to any action or motion to enforce a child custody order so when a wife has filed a motion for contempt against her divorced husband for nonpayment of child support, that portion of the order granting the husband's counterclaim for a change in custody was reversed. Hammontree v. Hammontree, 186 Ga. App. 819, 368 S.E.2d 576 (1988).
Father did not seek to change custody by means of a counterclaim, contrary to the provisions of O.C.G.A. § 19-9-23(a) and (c), because the record showed that he filed a separate petition seeking modification of custody, which was not responsive to the mother's action to domesticate a foreign judgment, particularly as the actions, which were filed almost simultaneously, bore different case numbers. Lynch v. Horton, 302 Ga. App. 597, 692 S.E.2d 34 (2010), cert. denied, 563 U.S. 988, 131 S. Ct. 2447, 179 L. Ed. 2d 1210 (2011).
Modification of custody rights in contempt proceeding not authorized.
- Trial court exceeded the court's authority by entering an order within the context of a contempt proceeding which had the effect of modifying custody. McCall v. McCall, 246 Ga. App. 770, 542 S.E.2d 168 (2000).
Trial court properly held a parent in contempt in a post-divorce matter as the parent acknowledged that the parent refused to return the parties' children to the custodial parent after summer visitation and helped the children obtain legal counsel to file a modification of custody proceeding which was prohibited by prior trial court orders. Further, the custodial parent properly filed the contempt petition in the county wherein that parent resided. Because the custodial parent was successful in having the other parent found in contempt, the custodial parent was properly awarded attorney fees. Brochin v. Brochin, 294 Ga. App. 406, 669 S.E.2d 203 (2008).
When the father violated the joint custody agreement incorporated in the divorce decree by taking the child to Maryland and refusing to return the child to Georgia, the trial court entered an ex parte emergency order in the contempt action. Because the trial court issued a final order modifying custody in a separate action as required by O.C.G.A. § 19-9-23, the final order rendered any issues regarding the validity of the temporary order moot. Roberts v. Kinsey, 308 Ga. App. 675, 708 S.E.2d 600 (2011).
There was valid waiver of jurisdiction when the legal custodian of the minor children moved from one county to another before the court entered the court's first order regarding custody, although the noncustodial parent, who was the subject of the custodian's contempt proceeding, petitioned in the custodian's case to modify custody; the matters which could have properly been considered by the trial court were not even raised by the custodial parent until more than six months after she had consented in two orders modifying custody and after the trial court had found that emergency action was required in order to protect the best interests of the minor children of the parties. Daust v. Daust, 204 Ga. App. 29, 418 S.E.2d 409 (1992).
Deprivation petition.
- Juvenile court did not retain jurisdiction to hear grandparents' petition for permanent custody after determining that the mother's four children were deprived since the grandparents' complaint for permanent custody was not in the nature of a deprivation petition and did not allege that they should be granted permanent custody of the children on the basis that the children were deprived. In re C.C., 193 Ga. App. 120, 387 S.E.2d 46 (1989).
Modification of visitation rights.
- Any conflict between the provisions of O.C.G.A. §§ 19-9-1(b) and19-9-3(b) with those of O.C.G.A. § 19-9-23, insofar as seeking modification of visitation rights by motion is concerned, is harmonized by holding that the former come into play only when jurisdiction and venue are also proper. Bennett v. Wood, 188 Ga. App. 630, 373 S.E.2d 645 (1988).
Inasmuch as the record shows that this divorce action terminated with the entry of a final judgment and decree; that the wife subsequently changed her residence to another county; and that the husband filed his motion to modify outside the term of court, the trial court erred in ruling on the husband's motion to modify visitation. Ward v. Ward, 194 Ga. App. 669, 391 S.E.2d 480 (1990).
Although a trial court may modify, sua sponte, visitation under certain circumstances pursuant to O.C.G.A. §§ 19-9-1(b) and19-9-3(b), those provisions "come into play only when jurisdiction and venue are also proper." Rogers v. Baudet, 215 Ga. App. 214, 449 S.E.2d 900 (1994).
Action not separate or in proper county.
- Mother's oral motion for change in custody failed to meet the requirements of O.C.G.A. § 19-9-23 in two respects; the mother did not seek a change in custody in a separate action, but rather in response to the father's petition for contempt against the mother, and the mother did not seek a change in custody in the county in which the father lived as required by § 19-9-23(a) and (b). Hammonds v. Parks, 319 Ga. App. 792, 735 S.E.2d 801 (2012).
Appeal moot when visitation restored.
- In a post-divorce proceeding, the appellate court dismissed a father's appeal of the trial court's rulings with regard to the writ for habeas corpus filed seeking to enforce visitation rights because the appeal was moot since the father's visitation was restored. Higdon v. Higdon, 321 Ga. App. 260, 739 S.E.2d 498 (2013).
Cited in Munday v. Munday, 243 Ga. 863, 257 S.E.2d 282 (1979); Lanning v. Lanning, 151 Ga. App. 648, 260 S.E.2d 764 (1979); Munday v. Munday, 152 Ga. App. 232, 262 S.E.2d 543 (1979); Austin v. Austin, 245 Ga. 487, 265 S.E.2d 788 (1980); Seymour v. Seymour, 156 Ga. App. 293, 274 S.E.2d 690 (1980); Hutto v. Hutto, 250 Ga. 116, 296 S.E.2d 549 (1982); In re D.N.M., 193 Ga. App. 812, 389 S.E.2d 336 (1989); Kemp v. Sharp, 261 Ga. 600, 409 S.E.2d 204 (1991); Upchurch v. Smith, 281 Ga. 28, 635 S.E.2d 710 (2006); Taylor v. Curl, 298 Ga. App. 45, 679 S.E.2d 80 (2009); Oglesby v. Deal, 311 Ga. App. 622, 716 S.E.2d 749 (2011).
RESEARCH REFERENCES
Am. Jur. 2d.
- 2 Am. Jur. 2d, Adoption, §§ 107, 113.
C.J.S.- 15A C.J.S., Conflict of Laws, § 52 et seq. 39 C.J.S., Habeas Corpus, §§ 6, 7, 124 et seq. 39 C.J.S., Guardian and Ward, § 58. 67A C.J.S., Parent and Child, § 128 et seq.
ALR.- Award of custody of child where contest is between child's mother and grandparent, 29 A.L.R.3d 366.
Right to require psychiatric or mental examination for party seeking to obtain or retain custody of child, 99 A.L.R.3d 268.
Religion as factor in child custody and visitation cases, 22 A.L.R.4th 971.
Interference by custodian of child with noncustodial parent's visitation rights as ground for change of custody, 28 A.L.R.4th 9.