Do you need help establishing paternity

Paternity is the showing that a Father is the biological father of a child at issue. This is the first step in pursuing a legitimation and custody action. It is typically done by DNA test. If the mother will not consent to a DNA test, the Court can order one to happen and hold mom in contempt if she fails to make the child available.

The attorneys at Perrotta, Cahn & Associates represent clients throughout Georgia. We have offices conveniently located around Northwest Georgia. To schedule a free consultation with a lawyer at our firm, call us toll-free at 866-382-8900 or visit us online at www.northgafamilylawyer.com.

We have offices in: CartersvilleCalhounDalton and Dallas

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Why a drug offense means finding an experienced criminal defense attorney

illegal-drugsThere are five different lists, or “schedules” of substances that have different sanctions and sentences depending on the type of drug, the amount seized, and other factors.  Drug offenses can range from misdemeanor possession of marijuana to Trafficking in Illegal Substances.

Driving Privileges – Drug offenses, including marijuana possession, result in suspension of driving privileges unless the case is handled properly to prevent the suspension.

Drug offenses typically fall into four categories:

  • HOW DRUGS WORK: CANNABISPossession – having a personal use amount of an illegal drug, usually on one’s person, car, or home.  This can also include, depending on the circumstances, the possession in one’s own blood stream after ingestion.
  • Manufacturing – The production, preparation or processing of a controlled substance.  Includes the growing of marijuana.
  • prescription-drugs1Possession with intent to Distribute – the lower “drug dealing” crime that is often differentiated from trafficking by the amount seized, distribution items found, and other circumstances.
  • Drug Trafficking – the most serious offense that carries long sentences and time in prison.

The lawyers at Perrotta, Cahn & Associates are here to help clients throughout Georgia. We have offices conveniently located across Northwest Georgia. To schedule a free consultation with an attorney at our firm, call us toll-free at 866-382-8900 or visit us online at www.northgafamilylawyer.com

We have offices in: Cartersville, Calhoun, Dalton and Dallas

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Family violence IS a crime

domestic-violenceDomestic/Family Violence Act is a subset of violent crimes determined by the relationship between the defendant and victim.  “Family Violence” is defined as any felony, or act of battery, simple assault, assault, stalking, criminal damage to property, unlawful restraint, or criminal trespass that involves past or present spouses, parents of the same child, parents and children, stepparents and stepchildren, foster parents and foster children, or other persons living or formerly living in the same household.

The relationship between the “offender” and the “victim” can give rise to different sentences under the above-mentioned charges under Assault and Battery.  It can also change, depending on the number of times charged, the crime from a misdemeanor to a felony, resulting in far greater sentences including the possibility of prison.domestic-violence-cycle

Family Violence Act also provides the “victim” the chance to apply for a Domestic Violence Temporary Protective Order (TPO), which, while a civil matter, can have serious consequences on future criminal sentences/sanctions.  The entry of a TPO has consequences including entry into the Georgia Protective Order Registry run by the Criminal Information Center; require psychological or other treatment; the court can grant custody, child support and even spousal support in a TPO hearing.

domestic-violence-noThe attorneys at Perrotta, Cahn & Associates represent clients throughout Georgia.  We have offices conveniently located around Northwest Georgia.  To schedule a free consultation with a lawyer at our firm, call us toll-free at 866-382-8900 or visit us online at www.northgafamilylawyer.com.

We have offices in: Cartersville, Calhoun, Dalton and Dallas

Serving clients in: Bartow, Floyd, Paulding, Cherokee, Polk, Whitfield, Douglas, Cobb, Fulton, Chatham, and all of Northwest Georgia.

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DUI defense and what you need to know

DUI-defenseDriving under the Influence laws state that a person shall not drive or be in actual physical control of any moving vehicle while under the influence of alcohol, narcotics, or other substance that renders you less safe to drive.

Alcohol DUI can be shown by the state that you are statutorily or “per se” less safe with a .08 or higher blood alcohol content (BAC), or by evidence from the officer showing the driver as being a less safe driver.

  • Statutory DUI primarily rests on the accuracy and proper testing procedures conducted by the arresting officer.
  • “Less Safe” DUI can be shown by the State through audio/video evidence, field sobriety tests, live testimony of the scene, etc.

The presence of any illegal drug can result in a DUI charge, again the State would have to show through proper testing methods the existence and identity of the illegal drug.

Lawfully prescribed drugs have a different standard.  The State must show that the driver is rendered incapable of driving safely as a result of using a drug, other than alcohol, which such person is legally entitled to use. All of these types of DUI cases have a variety of defenses and strategies that can be used to attempt to have a case dismissed, to win at trial or use to negotiate favorable plea bargains, depending on the facts, evidence, and procedure in each individual case.

Perrotta, Cahn & Associates represents clients throughout Georgia and the Southeastern United States.  They have offices conveniently located throughout Georgia.  Attorney Tony Perrotta has personally won over 1000 custody cases on behalf of dad’s.  To schedule a free consultation with a lawyer at our firm, call us toll-free at 866-382-8900 or visit us online at www.northgafamilylawyer.com.

We have offices in: Cartersville, Calhoun, Dalton and Dallas

Serving clients in: Bartow, Floyd, Paulding, Cherokee, Polk, Whitfield, Douglas, Cobb, Fulton, Chatham, and all of Northwest Georgia.

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Family violence matters; or, Family violence does matter

Family Violence is all to common in our society.  Oftentimes a spouse will not say anything and allow abuse to continue because they have no means of stopping it and no resources to get out of the situation.  In any violent situation the police should be called to allow for an investigation.  There are also Protective Orders that can be obtained to keep an abuser away.  In a marriage situation, the court can get involved very quickly in violence situations and award possession of homes, vehicles, and even custody should the emergency exist.

The attorneys at Perrotta, Cahn & Associates represent clients throughout Georgia.  We have offices conveniently located around Northwest Georgia.  To schedule a free consultation with a lawyer at our firm, call us toll-free at 866-382-8900 or visit us online at www.northgafamilylawyer.com.

Perrotta, Cahn & Associates represents clients throughout Georgia and the Southeastern United States.  They have offices conveniently located throughout Georgia.  Attorney Tony Perrotta has personally won over 1000 custody cases on behalf of dad’s.  To schedule a free consultation with a lawyer at our firm, call us toll-free at 866-382-8900 or visit us online at www.northgafamilylawyer.com.

We have offices in: Cartersville, Calhoun, Dalton and Dallas

Serving clients in: Bartow, Floyd, Paulding, Cherokee, Polk, Whitfield, Douglas, Cobb, Fulton, Chatham, and all of Northwest Georgia.

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Don’t risk your family’s future — choose a divorce attorney wisely

There are few things in life more painful than going through a divorce when you have minor children. Nothing is ever permanently settled as the law allows either party to modify custody, visitation, child support, etc., until the children are grown.

Beside the personal toll, a divorce may be the most important financial transaction you will make in your life. Everything  accumulated  during the marriage is subject to equitable division. Note that “equitable” does not mean equal. It means the judge can do whatever he/she thinks is fair under the facts of your case. Real estate, vehicles, personal property, checking and savings accounts, 401K, and other retirement plans and pensions are subject to division as are all debts accumulated during the marriage.

Then there is the fast fading concept of alimony, where all aspects of your life, both personal and financial factor in. We at Perrotta, Cahn & Associates have over 30 years of experience in all areas of Family Law.

Perrotta, Cahn & Associates represents clients throughout Georgia and the Southeastern United States.  They have offices conveniently located throughout Georgia.  Attorney Tony Perrotta has personally won over 1000 custody cases on behalf of dad’s.  To schedule a free consultation with a lawyer at our firm, call us toll-free at 866-382-8900 or visit us online at www.northgafamilylawyer.com.

We have offices in: Cartersville, Calhoun, Dalton and Dallas

Serving clients in: Bartow, Floyd, Paulding, Cherokee, Polk, Whitfield, Douglas, Cobb, Fulton, Chatham, and all of Northwest Georgia.

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The parental alienation syndrome in Georgia (part 5 of 5)

23.     Adams v. Adams, 219 Ga. 633, 135 S.E.2d 428 (1964).

The father had petitioned to transfer custody on two counts: (1) that the child had turned 14 and had expressed a preference to live with the father, and (2) that the mother was poisoning the child’s mind against him. The trial court denied the mother’s motion to strike the two counts in the father’s petition. The Georgia Supreme Court held that the father’s allegations that the mother had attempted to poison the mind of the parties’ child in her custody, if proven, would authorize a court to order a change of custody. The court also found that the 14-year-old was allowed to select which parent to live with under the relevant statute.

As the court did not have the occasion to address the evidence of the mother’s attempted poisoning of the child’s mind, the court’s opinion does not discuss the underlying facts of the case. However, based on the fact that it was the child’s express preference to live with the father, it is unlikely that the mother’s actions were all that successful.

24.     Perry v. Perry, 213 Ga. 847, 102 S.E.2d 534 (1958).

The father petitioned to change the custody award, alleging that the mother had attempted to poison the child’s mind against him. The trial court overruled the mother’s motion to dismiss the father’s petition. This decision was affirmed by the Georgia Supreme Court. The husband’s petition alleged that the mother “implanted a fear of his father in the mind of the child” and that she convinced the child to bring his own lunch with him and refuse to eat anything else when visiting with the father “under the delusion that the food might be poisoned.” 213 Ga. at 850.

The Georgia Supreme Court relied on its earlier decision in Fuller v. Fuller, 197 Ga. 719, 30 S.E.2d 600 (1944), to conclude that the husband’s allegations could justify the transfer of custody. While acknowledging that this previous language in Fuller was dicta, the court found that the reasoning of that decision was persuasive and affirmatively adopted the position that proof of the fact that a parent was attempting to poison the mind of a child against the other parent “would constitute cogent circumstances which the court in the exercise of its discretion would be authorized to consider in passing upon a petition to change custody based thereon.” 213 Ga. at 851.

25.     Rowell v. Rowell, 212 Ga. 584, 94 S.E.2d 425 (1956).

The father petitioned for a change of custody after mother had been awarded custody of parties1 child. The mother cross-petitioned for a reduction in the father’s visitation rights based on her claim that the father was attempting to alienate the child from her. The trial court denied the father’s petition to change custody but found that the evidence supported granting the mother’s petition to limit the father’s visitation. The evidence demonstrated that the father’s attempts to alienate the child from the mother caused the child to become “nervous and emotionally upset.” 212 Ga. at 585. The father also called and visited the child at his school, which also resulted in the child becoming emotionally upset and led the principal of the school to bar the father from calling the school again. The Georgia Supreme Court affirmed the trial court’s decision to limit the father’s visitation.

26.     Crook v. Crook, 211 Ga. 406, 86 S.E.2d 223 (1955).

The Georgia Supreme Court affirmed the trial court’s decision striking the father’s petition to modify the custody award. Even if the father’s allegations that the mother was poisoning the minds of the parties’ children against him by “instructing them not to respect and honor him and not to love him” were sufficient to show that the mother’s actions had changed since the original custody award, the father was in no position to care for the children, and so awarding him custody would not be in the children’s best interests.

27.     Jones v. White, 209 Ga. 412, 73 S.E.2d 187 (1952).

The Georgia Supreme Court affirmed the decision of the trial court to make specific the duration and conditions of the wife’s visitation rights with the children in the father’s custody where the father had exhibited behavior designed to alienate the children from the mother.

The allegations that the father had moved the children over 1,000 miles away from the mother’s residence and that, when she travels that distance to see the children, he refuses to let her visit them or lets her see them “only when it pleases him,” that he has insulted her and intimidated her, has prejudiced the children against her, instructed them not to call her “mother,” and told them that she was not their mother, were such allegations of fact as would support the conclusion that he was an unfit person to have their custody and, if proven to be tine, to authorize a change in custody.

209 Ga. at 412.

28.     Elders v. Elders, 206 Ga. 297, 57 S.E.2d 83 (1950).

The mother petitioned for a change of custody, alleging various facts to support a finding that a change in conditions had occurred since the initial custody order. One of these facts was the mother’s claim that “the father had been poisoning [the children’s] minds against her by telling them that she did not love them and that she was immoral.” 206 Ga. at 297. The father admitted that he had made such statements to the children, although he explained that he only did so because such statements were being made in his neighborhood and he wanted to be the first to address it with the children. The trial court granted the mother’s petition because of the father’s statements to the children that denigrated the mother.

The Georgia Supreme Court reversed the trial court’s decision to transfer custody to the mother, finding that no changed conditions existed that would justify the transfer. The court noted that an earlier decision, Fuller v. Fuller, 197 Ga. 719, 30 S.E.2d 600 (1944), disapproved of a parent making uncomplimentary statements about the other parent even if such statements were true. However, the court concluded that this language was dicta. The court found that although the father had in fact made the disparaging remarks to the children, he did not do so with “malicious intent” but, instead, with the intent to talk to the children about what they would likely hear about their mother from others. 206 Ga. at 300. The court stated that the husband’s decision to discuss these matters with the children may not have been wise, but that “it was an act of a father doing what he thought was best, and he should not be deprived of the custody of the children because of it.” Id. 29.    Fuller v. Fuller, 197 Ga. 719, 30 S.E.2d 600 (1944).

The Georgia Court of Appeals reversed the trial court’s decision not to dismiss the father’s petition to modify the divorce decree so that he could have custody of the parties’ children at certain times. Even though the father alleged in his petition that the mother was poisoning die minds of the children against him, the court found that the father failed to allege that any change in condition had occurred since the entry of the divorce decree where there was no allegation that the wife was now acting differently than before. The court did express its belief, however, that such actions may warrant a modification of custody in other cases.

If a change of condition of this nature had been shown, then the question would have been presented whether a court would have been authorized to modify the decree in the particulars sought on the ground that such a change was one that materially affected the interest and welfare of the children. It could be forcibly urged that for another to implant in the mind of an immature child the idea that he must not love his father, that the latter is unworthy of such affection, is a matter of serious import, the tendency of which would be to deprive a child of that affection, confidence in, and respect which he should have for his father, and to deprive such child, particularly a male child, of the hope that at some time or other he might have the companionship of his father, and the latter’s guiding hand. In God’s economy, a child has to have a father, and this is not merely that there be some one to provide the former with food, raiment, and shelter. There are certain intangible benefits besides these which every normal child is entitled to receive from his father, growing out of the relationship, which can not be furnished when the child is poisoned against the parent. These intangibles spring from affection, mutual affection, and have no existence when the child is made to believe that his father is unworthy of his love. Is it to the interest and welfare of the child that he should grow up under the belief that, unlike most other children, his own father, if appealed to, could not be trusted to suggest, advise, and admonish the child, in the light of his own knowledge and experience? That his own father was unworthy of his love and confidence, or even his respect? Would not the implanting of such a view ordinarily have a tendency to cause a child embarrassment and tend to cause him to develop abnormally?

We have thrown out these suggestions with a view of calling attention to the fact that in reversing the judgment we are adjudicating merely that it is’ not made to appear that there was any change of condition. We do not have for decision the question whether or not the facts as pleaded show a condition materially affecting the interest and welfare of the children.

197 Ga. at 725-26.

The above-cited cases all involve the courts’ consideration of facts that would be included under the Parental Alienation Syndrome, even though none of these cases expressly address that theory. The general rule that can be derived from these cases is that there will typically be consequences when a custodial parent attempts to alienate a child from the noncustodial parent or interfere with the noncustodial parent’s visitation rights. Obviously these decisions are very fact-specific, and what may constitute egregious behavior on the part of a custodial parent warranting a transfer of custody in one case may not rise to that level in another.

Perrotta, Cahn & Associates represents clients throughout Georgia and the Southeastern United States.  They have offices conveniently located throughout Georgia.  Attorney Tony Perrotta has personally won over 1000 custody cases on behalf of dad’s.  To schedule a free consultation with a lawyer at our firm, call us toll-free at 866-382-8900 or visit us online at www.northgafamilylawyer.com.

We have offices in: Cartersville, Calhoun, Dalton and Dallas

Serving clients in: Bartow, Floyd, Paulding, Cherokee, Polk, Whitfield, Douglas, Cobb, Fulton, Chatham, and all of Northwest Georgia.

_______________________________________________________________

GOVERNING JURISDICTION

1.     LEGISLATION

Ga. Code Ann. • ■ 19-9-1, 19-9-3 (2005)

2.     DIGESTS

Georgia Digest

“Child Custody” 47-51, 57, 58, 68, 77, 78, 82, 85, 179, 181, 187-190, 196, 197, 201, 202, 204, 207, 261, 468, 469, 474, 558-560, 564, 566, 568, 569,965-992

updated on March 9, 2005 via Westlaw

3.     OTHER

Westlaw: GA-CS

((alienat! or poison! or brain-wash!) Is (child! or son or daughter or parent or husband or wife or mother or father or grand-parent or grand-mother or grand-father)) and (custody or visit!)

NATIONAL

1.     ENCYCLOPEDIAS

24A Am. Jut. 2d Divorce and Separation 1 995 (2004)

2.     A.L.R.

Debra E. Wax, Interference by Custodian of Child with Noncustodial Parent’s Visitation

Rights as Ground for Change of Custody, 28 A.L.R.4th 9

Jay M. Zitter, Custodial Parent’s Relocation as Grounds for Change of Custody, 70

A.L.R.5th 377

3.     LEGAL PERIODICALS

Carol S. Bruch, Parental Alienation Syndrome and Parental Alienation: Getting It Wrong in Child Custody Cases, 35 Fam. L.Q. 527 (2001)

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The parental alienation syndrome in Georgia (part 4 of 5)

14.             Strickland v. Williams, 234 Ga. 752, 218 S.E.2d 8 (1975).

The father refused to allow the mother to exercise visitation where he and his new wife believed that the child “would be better off not seeing the mother anymore and that if he did not see his mother for a few weeks, then he would not want to see her anymore.” 234 Ga. at 753. There was also evidence that the child was confused as what to call the mother and the father’s new wife. The father was held in contempt for denying the mother’s visitation rights.

15.             Might v. Butler, 230 Ga. 533, 19S S.E.2d 169 (1973).

The Georgia Supreme Court reversed the trial court’s decision that it could not transfer custody of the parties’ children to the mother. Evidence was presented that the father and his new wife taught the children to call the mother by her given name while calling the new wife “mother” in an attempt to impart the belief that the father’s new wife was the children’s mother instead of their biological mother. Although this evidence was contradicted by the father, the court held that this conflict would not preclude the trial court from modifying the custody award if the trial court believed the evidence presented by the mother. The court found that the trial court erred when it decided that there was no evidence that would authorize the trial court to order a modification. The court remanded the decision but did not indicate whether it thought a change in custody should be ordered.

16.             Moore v. Wiggins, 230 Ga. 51, 195 S.E.2d 404 (1973).

The father was not entitled to a modification of his visitation privileges based on the fact that the mother was going to move with the child to a location 400 miles away. The father alleged that the purpose of the mother’s move was to interfere with his visitation rights. The husband also alleged that the wife had denied him the right to exercise visitation on at least two previous occasions. The Georgia Supreme Court affirmed the decision that this proposed move did not constitute a sufficient change of condition to warrant such a modification.   The court proceeded to- distinguish earlier cases that allowed for a modification when a noncustodial parent’s visitation rights were affected. These three cases are clearly distinguishable from the one at bar. In each there was a pattern of continued willful acts obviously intended to thwart and nullify the visitation provisions of the decree rather than merely two complaints of denial in approximately thirteen months visitation as shown here.

230 Ga. at 55.

17.             Aynes v. Scheer, 229 Ga. 205, 190 S.E.2d 34 (1972).

The trial court’s order denying the mother’s petition to transfer custody but awarding her visitation rights was affirmed by the Georgia Supreme Court. The decision to award visitation rights was supported by the evidence that after the mother had remarried over the father’s objections, the father attempted to cut off her contact with the children. The father refused to allow the children to receive letters or telephone calls from the mother and also refused to allow the children to communicate with her themselves.

18.              Osborne v. Osborne, 227 Ga. 235, 179 S.E.2d776 (1971).

The mother’s refusal to allow the father to visit with the children on one occasion where he arrived at the mother’s home unannounced while she had guests was not sufficient to show a denial of visitation rights that would justify a modification of custody.

19.              Tyree v. Jackson, 226 Ga. 690, 177 S,E.2d 160 (1970).

The father petitioned for custody of the parties’ child after the mother had taken great pains to interfere with the father’s visitation rights as well as to alienate him from the child. The Georgia Supreme Court found that the evidence presented of the mother’s actions supported the decision to transfer custody to the father. The mother had “systematically and regularly attempted to hinder and thwart the father in the exercise of his visitation rights” and had on one occasion rendered visitation impossible by leaving the state with the child. 226 Ga. at 696. The court concluded that this action alone “would authorize a modification of [the divorce] decree.” Id.

In addition to the evidence of the mother’s attempts to deny the father visitation, the evidence also demonstrated that the mother attempted to alienate the child from the father. The mother attempted to teach the child to refer to the father by his given name and told the child that he was not actually her father. The mother would also plead with the child not to go with the father when he came over to pick her up. The court found that this evidence would also support a modification of the custody award.

20.               Beckman v. Beckman, 225 Ga. 693, 171 S.E.2d 135 (1969).

The trial court’s refusal to dismiss the father’s complaint for to modify his visitation rights was affirmed by the Georgia Supreme Court. The court found that the father’s complaint sufficiently stated a claim for relief that a material change of circumstances had occurred since the custody award. The father’s complaint alleged that the mother had denied the father visitation in the past and that “[f]he mother encourages the children not to visit with the father and seeks to prejudice them against him.” 225 Ga. at 694.

21.               Lamb v. Nabers, 224 Ga. 396, 162 S.E.2d 336 (1968).

The trial court granted the father’s petition to specify exact times he could exercise visitation where wife had interfered with his contact with the parries’ children. The father alleged that the mother has threatened to shoot him and that her new husband has threatened to swear out a warrant against him. He also alleged that the mother slams the door in his face and removes the children from the home whenever he attempted to visit with the children. The court found that the evidence presented supporting these claims was sufficient to allow for a change of custody setting forth the father’s specific visitation rights.

22.               Everly v. Everly, 223 Ga. 853, 159 S.E.2d 78 (1968).

The father petitioned to modify the divorce decree which had awarded custody of the parties’ children to the mother and denied him visitation rights. The father sought visitation, arguing that the mother had denied him access to the parties’ children and was “alienating the affections of his children from him.” 223 Ga. at 854. The mother had prevented the father from communicating with the children by telephone and through letters. The Georgia Court of Appeals affirmed the trial court’s denial of the father’s petition on the basis that no changed circumstances were alleged. The court made a distinction between attempting to inspire fear of a parent in a child and only alienating the children’s affections from that parent.

This court has held that a malicious attempt by one parent to implant fear and hatred of the other parent in the minds of their children might be considered as a change of circumstances authorizing a redetermination of the question of custody. Perry v. Perry, 213 Ga. 847, 850, supra; Adams v. Adams, 219 Ga. 633, 135 S.E.2d 428. The present petition does not make such a case. It alleges only an alienation of the affections of the children by refusing to allow the father to communicate with them, which the mother was authorized to do under the decree awarding exclusive custody to her and denying him any visitation rights.

Id. at 855.

The distinction drawn by the court in Everly seems tenuous at best and to be based solely on the fact that the father was originally denied any visitation rights with the children and, thus, the mother’s actions did not actually rise to the level of a deliberate attempt to alienate the children from their father.

(TO BE CONCLUDED…)

Perrotta, Cahn & Associates represents clients throughout Georgia and the Southeastern United States.  They have offices conveniently located throughout Georgia.  Attorney Tony Perrotta has personally won over 1000 custody cases on behalf of dad’s.  To schedule a free consultation with a lawyer at our firm, call us toll-free at 866-382-8900 or visit us online at www.northgafamilylawyer.com.

We have offices in: Cartersville, Calhoun, Dalton and Dallas

Serving clients in: Bartow, Floyd, Paulding, Cherokee, Polk, Whitfield, Douglas, Cobb, Fulton, Chatham, and all of Northwest Georgia.

_______________________________________________________________

GOVERNING JURISDICTION

1.     LEGISLATION

Ga. Code Ann. • ■ 19-9-1, 19-9-3 (2005)

2.     DIGESTS

Georgia Digest

“Child Custody” 47-51, 57, 58, 68, 77, 78, 82, 85, 179, 181, 187-190, 196, 197, 201, 202, 204, 207, 261, 468, 469, 474, 558-560, 564, 566, 568, 569,965-992

updated on March 9, 2005 via Westlaw

3.     OTHER

Westlaw: GA-CS

((alienat! or poison! or brain-wash!) Is (child! or son or daughter or parent or husband or wife or mother or father or grand-parent or grand-mother or grand-father)) and (custody or visit!)

NATIONAL

1.     ENCYCLOPEDIAS

24A Am. Jut. 2d Divorce and Separation 1 995 (2004)

2.     A.L.R.

Debra E. Wax, Interference by Custodian of Child with Noncustodial Parent’s Visitation

Rights as Ground for Change of Custody, 28 A.L.R.4th 9

Jay M. Zitter, Custodial Parent’s Relocation as Grounds for Change of Custody, 70

A.L.R.5th 377

3.     LEGAL PERIODICALS

Carol S. Bruch, Parental Alienation Syndrome and Parental Alienation: Getting It Wrong in Child Custody Cases, 35 Fam. L.Q. 527 (2001)

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The parental alienation syndrome in Georgia (part 3 of 5)

9.      Saxon v. Saxon, 207 Ga. App. 471, 428 S.E.2d 376 (1993).

The father petitioned for a change of custody arguing that the mother was unfit to have custody because she was in a meretricious relationship and because she had attempted to “poison the mind” of the parties’ child against the father. The father alleged that the mother showed the child the pleadings in the custody case and discussed the details of the case with the child in an attempt to alienate the child from the father. The mother stated that she showed the child the pleadings “to allay his concents about the proceedings.” 207 Ga. App. at 472. The trial coutt found that the wife’s actions rendered her unfit to have custody.

The Georgia Court of Appeals found that the trial court could properly reject the wife’s explanation for discussing the case with the child. However, the court found that the wife’s actions did not render her unfit. “[Tjhere is no evidence mat the mother’s discussion of the case with the child amounted to abuse of, neglect of, or inability to care for the child.” Id. The court of appeals then reversed the trial court’s custody decision and ordered that custody remain with the mother in keeping with the preference of the child, who was 15 years old at the time.

10.             Chandler v. Chandler, 261 Ga. 598, 409 S.E.2d 203 (1991).

The father successfully petitioned for a transfer of custody of the parties’ child after the mother had removed the child from Georgia without notice and denied the father visitation, asserting that she was protecting the child from sexual abuse. In addition to transferring custody, the trial court severely limited the mother’s visitation lights, only allowing her visitation in accordance with the written agreement of the parties. This limitation was imposed based on the trial court’s concern that the mother may attempt to abduct the child.

The Georgia Supreme Court affirmed the transfer of custody but found that the trial court abused its discretion by entering an order that effectively terminated the mother’s right to visit with the child. The court remanded the case so that appropriate visitation rights could be awarded to the mother, holding that “[ljess extreme arrangements, including limited and supervised visitation, could be instituted to satisfy the trial court’s concerns that [the mother] might abduct the child if granted visitation.” 261 Ga. at 599.

11.             Arp v. Hammonds, 200 Ga. App. 715, 409 S.E.2d275 (1991).

The mother successfully petitioned for a change of custody based on the father’s interference with her visitation rights. The mother testified regarding the father’s actions including that the father induced her to sign a separation agreement giving him custody by promising to remain in the marital home, that he failed to keep her apprised of school and religious functions, that he would hang up the telephone while the mother was talking to the children and would not allow them to call her back for days, and that he refused to allow the mother to exercise all of her summer visitation with the children as provided in the parties’ agreement. The trial court found that the mother had established that a material change of circumstances existed and granted her petition

In a 5 to 4 decision, the Georgia Court of Appeals affirmed the transfer of custody.  The court concluded that the father’s refusal to allow summertime and telephonic visitation was sufficient to authorize a change in custody. Furthermore, the court found that the father’s pattern of violating the terms of the divorce decree would also justify a change in custody. The court summarized the evidence that supported the trial court’s decision to transfer custody to the mother as follows:

Based on the evidence, the trial judge could draw the reasonable inference that the types of behavior exhibited by the father towards the mother, which in large measure were contemptuous of court authority, and his negative attitude and overt antipathy towards the girls’ relationship with her, demonstrated by his repeated insulation of them from contact with her, adversely affected their natural relationship with their mother because of his influence on them. This could be deemed harmful to the young daughters, aged five and seven at the time of the order appealed from. He could also draw the reasonable inference that the father’s repeated interference with the mother’s participation in child -rearing, disserved their welfare. These support the conclusion that it was not in the little girls’ best interest to remain in this environment.

200 Ga. App. at 718.

12.    Hyman v. Moldovan, 166 Ga. App. 891, 305 S.E.2d 648 (1983).

The Georgia Court of Appeals affirmed the dismissal of the father’s suit for alienation of affections for failing to state a claim. The father brought suit against the mother, her current husband, and her parents for conspiracy to commit the tort of alienation of affections, alleging that these parties had conspired to alienate the affections of his child. The court found that any such claim was abrogated by OCGA 51-1-17, which abolished the tort of alienation of affections. The court rejected the father’s position that this statute applied only to the alienation of a spouse’s affections.

13.    Bull v. Bull, 243 Ga. 72, 252 S.E.2d 494 (1979).

The mother, who was awarded custody of the parties’ child, refused to comply with the divorce decree’s grant of visitation to the father. Under the terms of the decree, the father was entitled to have the child for two weeks during the summer. The trial court entered an order requiring the mother to surrender the child to the father for his summer visitation; however, neither the mother nor child could be located. Eight days later, the trial court ordered that custody be transferred from the mother to the father. The mother was subsequently held in contempt for refusing to comply with both orders.

The trial court’s decision to transfer custody to the father was affirmed by the Georgia Supreme Court. The court found that the transfer was justified because of the mother’s refusal to allow the father to exercise his visitation rights. The court held that “[fjhere is sufficient evidence in the record of the repeated denial of the non-custodial parent’s visitation rights to authorize a change of custody.” 243 Ga. at 72.

(TO BE CONTINUED…)

Perrotta, Cahn & Associates represents clients throughout Georgia and the Southeastern United States.  They have offices conveniently located throughout Georgia.  Attorney Tony Perrotta has personally won over 1000 custody cases on behalf of dad’s.  To schedule a free consultation with a lawyer at our firm, call us toll-free at 866-382-8900 or visit us online at www.northgafamilylawyer.com.

We have offices in: Cartersville, Calhoun, Dalton and Dallas

Serving clients in: Bartow, Floyd, Paulding, Cherokee, Polk, Whitfield, Douglas, Cobb, Fulton, Chatham, and all of Northwest Georgia.

_______________________________________________________________

GOVERNING JURISDICTION

1.     LEGISLATION

Ga. Code Ann. • ■ 19-9-1, 19-9-3 (2005)

2.     DIGESTS

Georgia Digest

“Child Custody” 47-51, 57, 58, 68, 77, 78, 82, 85, 179, 181, 187-190, 196, 197, 201, 202, 204, 207, 261, 468, 469, 474, 558-560, 564, 566, 568, 569,965-992

updated on March 9, 2005 via Westlaw

3.     OTHER

Westlaw: GA-CS

((alienat! or poison! or brain-wash!) Is (child! or son or daughter or parent or husband or wife or mother or father or grand-parent or grand-mother or grand-father)) and (custody or visit!)

NATIONAL

1.     ENCYCLOPEDIAS

24A Am. Jut. 2d Divorce and Separation 1 995 (2004)

2.     A.L.R.

Debra E. Wax, Interference by Custodian of Child with Noncustodial Parent’s Visitation

Rights as Ground for Change of Custody, 28 A.L.R.4th 9

Jay M. Zitter, Custodial Parent’s Relocation as Grounds for Change of Custody, 70

A.L.R.5th 377

3.     LEGAL PERIODICALS

Carol S. Bruch, Parental Alienation Syndrome and Parental Alienation: Getting It Wrong in Child Custody Cases, 35 Fam. L.Q. 527 (2001)

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The parental alienation syndrome in Georgia (part 2 of 5)

6.     Stewart v. Stewart, 245 Ga. App. 20, 537 S.E.2d 157 (2000).

The trial court held the father in contempt because his actions served to deny the mother her visitation rights with the parties’ child. After their divorce, the father was awarded physical custody and the mother received visitation rights. The mother subsequently moved to Texas, which enabled her to exercise visitation only on the third weekend of the month. The mother would send plane tickets to the father for the child, but the father repeatedly refused to put the child on the plane. The father continued his refusal even after he was ordered to do so in an earlier contempt proceeding. The trial court found that the father was in contempt “for withholding visitation and for not making reasonable efforts to facilitate visitation.” 245 Ga. App. at 20. The contempt finding was affirmed by the Georgia Court of Appeals.

7.     Mahan v. McRae, 241 Ga. App. 109, 522 S.E.2d 772 (1999).

The father sought a change in custody after learning of the mother’s intention to move to Massachusetts with the parties’ children. The father claimed that the mother had thwarted his attempts to be involved in the lives of the children. The trial court agreed with the father and held the following:

[T]he father made “extraordinary efforts” to remain actively involved in his children’s lives, but found himself “increasingly marginalized,” since the mother “acted as if the children were part of her new family with her new husband, to the exclusion of any significant role in [the children’s] lives for their Father.” 241 Ga. App. at 110-11.

The court reached this conclusion based on its findings that the mother expressed resentment when the father would attempt to visit with the children outside of his scheduled visitation and that the mother consistently denied the father’s requests to have the children attend special events at times also outside of his scheduled visitation.

The Georgia Court of Appeals reversed the trial court’s decision to transfer physical custody of the parties’ children to the father, holding that the father failed to establish any change of circumstances. The court found that the mother had not interfered with the father’s exercise of his visitation rights, but that she had only prevented him from being more involved than the court order provided. The court recognized that a custodial parent’s willful attempts to thwart the noncustodial parent’s visitation rights may justify the transfer of custody. However, the court found this principle inapplicable where the father was able to fully exercise his visitation rights. “We find no law . .. for the proposition that failure to agree to more than the court-ordered minimum visitation rights can result in a change of custody.” Id. at 112.

It should be noted that Mahan was decided on a 4 to 3 decision by the Georgia Court of Appeals. The dissenting justices in the case would have affirmed the trial court’s decision. The dissenting justices rejected the majority opinion’s contention that the mother’s actions only served to prevent the father from enjoying more visitation than he was entitled to under the court order.

On the contrary, the facts support the trial court’s conclusion that the children suffered emotionally because of the mother’s consistent refusal to cooperate with the father’s own efforts to be actively involved in their lives, resulting in a material change of condition.  Id. at 114.

8.     Holt v. Leiter, 232 Ga. App. 376, 501 S.E.2d 879 (1998).

Custody of the parties’ child was transferred to the mother after the father had attempted to hide the child from her and prevent her from exercising her visitation rights. The father had refused to allow the mother to visit the child on at least five occasions. The final instance occurred when the mother attempted to pick up the child from the father’s home and was informed by the father’s family that he and the child had moved to an unknown location. The father had in fact moved to Alabama with the child. Unable to locate the child, the mother petitioned to modify the custody award, and an ex parte order was entered in her favor. After finally being located, the father moved to set aside the order transferring custody to the mother.

On appeal, the majority of issues being addressed by the Georgia Court of Appeals involved the application of the Uniform Child Custody Jurisdiction Act. However, the court also found that a material change in circumstances existed that authorized the change in custody. The court noted that “despite [the father’s] attempts to downplay the significance of his actions, it is inescapable that he improperly absconded with the child without proper notice to [the mother.]” 232 Ga. App. at 381. The court also noted that the father’s previous denials of visitation to the mother had resulted in numerous contempt orders. In addition to the evidence of the father’s interference with the mother’s visitation, there was also testimony from the guardian ad litem that the father and his family were “attempting to brainwash the child against his mother” and that they regularly videotaped the child, looking for evidence of abuse. Id. at 382. The court concluded that the father’s actions in denying the mother visitation constituted a material change in circumstances authorizing a change in custody.

(TO BE CONTINUED…)

Perrotta, Cahn & Associates represents clients throughout Georgia and the Southeastern United States.  They have offices conveniently located throughout Georgia.  Attorney Tony Perrotta has personally won over 1000 custody cases on behalf of dad’s.  To schedule a free consultation with a lawyer at our firm, call us toll-free at 866-382-8900 or visit us online at www.northgafamilylawyer.com.

We have offices in: Cartersville, Calhoun, Dalton and Dallas

Serving clients in: Bartow, Floyd, Paulding, Cherokee, Polk, Whitfield, Douglas, Cobb, Fulton, Chatham, and all of Northwest Georgia.

_______________________________________________________________

GOVERNING JURISDICTION

1.     LEGISLATION

Ga. Code Ann. • ■ 19-9-1, 19-9-3 (2005)

2.     DIGESTS

Georgia Digest

“Child Custody” 47-51, 57, 58, 68, 77, 78, 82, 85, 179, 181, 187-190, 196, 197, 201, 202, 204, 207, 261, 468, 469, 474, 558-560, 564, 566, 568, 569,965-992

updated on March 9, 2005 via Westlaw

3.     OTHER

Westlaw: GA-CS

((alienat! or poison! or brain-wash!) Is (child! or son or daughter or parent or husband or wife or mother or father or grand-parent or grand-mother or grand-father)) and (custody or visit!)

NATIONAL

1.     ENCYCLOPEDIAS

24A Am. Jut. 2d Divorce and Separation 1 995 (2004)

2.     A.L.R.

Debra E. Wax, Interference by Custodian of Child with Noncustodial Parent’s Visitation

Rights as Ground for Change of Custody, 28 A.L.R.4th 9

Jay M. Zitter, Custodial Parent’s Relocation as Grounds for Change of Custody, 70

A.L.R.5th 377

3.     LEGAL PERIODICALS

Carol S. Bruch, Parental Alienation Syndrome and Parental Alienation: Getting It Wrong in Child Custody Cases, 35 Fam. L.Q. 527 (2001)

Leave a comment

Filed under Family Law