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Lucy, Esq.
Lucy, Esq., Lawyer
Category: Family Law
Satisfied Customers: 27619
Experience:  Attorney with experience in family law.
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Appeal by mother concerning custody of # was given to

Customer Question

Appeal by mother concerning custody of # ***** given to paternal grandparents. Judgment was "Vacated, and Case Remanded" stating "we vacate the trial court's order and remand this case for the trial court to make the appropriate findings of fact regarding #'s best interest" and "vacating and remanding where the trial court's order contained no findings of fact supporting it's finding that the award of custody to grandparents was in child's best interest." Did mother win? What's the next step for her?
Submitted: 1 year ago.
Category: Family Law
Customer: replied 1 year ago.
Sited statutes and case law:
Clark, supra, 273 GA at 593 (II), 598 (IV)
OCGA 19-7-1 (b1)
Harris, supra, 290 GA at 182-183 (2)
Grantham v. Grantham, 269 GA 413, 413-414 (1) (499 SE2d 67) (1998)
Expert:  Lucy, Esq. replied 1 year ago.

Hi,

I'm Lucy, and I'd be happy to answer your questions today

The mother won the appeal. "Vacated" means that the Appeals court is undoing the trial court's ruling. That also means that things go back to the way before that judgment was entered - so the mother should have custody until the trial court judge enters another order, unless there were temporary orders that said otherwise. "Remanded" means that the Appeals Court has been sent back to the trial court. So, the judge has to review the best interests factors and issue a written opinion that discusses them. If there was no trial before, there will have to be one now - a judge can only enter findings of fact after a trial. So, the mother may want to start preparing for a trial - she'll get a notice in the mail from the courthouse. They might do a status conference first.

The mother could also try to negotiate a settlement agreement with the grandparents for shared custody, because the fact that she won the appeal does not automatically mean that she'll win custody. The judge can issue findings of fact that explain why he granted custody to the grandparents, and why he thinks it's in the child's best interests to live with them, which could mean she'd have to appeal again.

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Customer: replied 1 year ago.
Temporary custody was only awarded through an Emergency Ex Parte Order of Custody, roughly 2 years ago.
In the Appeal judgement, there was a caveat that said they didn't need to address the last issue because the case was vacated. The unaddressed issue spoke of the Final Order took visitation away from Mother, stated the Mother was unfit with no evidence to support the statement, and made statements about her new husband (a Combat Wounded Special Operations Veteran) that were derogatory concerning his injuries and ability to parent without any expert testimony to support their statements.
Given this new information and the fact that there was a hearing that produced this Final Order, how does this effect custody and/or visitation while the judge responds to the Appeal decision and what becomes of the discrimination against her husband that was not addressed by the Appeal court due to their order to vacate?
Expert:  Lucy, Esq. replied 1 year ago.

The temporary order is reinstated until the judge issues findings of fact that support his decision. Only the final order should be vacated, because that's the order that was being appealed. Even if it was an Emergency Ex Parte order, if the parties didn't seen another temporary order later, that's going to remain in effect.

The Appeals Court doesn't have to address the statements made by the trial court judge when they're vacating the entire judgment, but there is unfortunately no cause of action against a judge for derogatory statements made in an opinion. Judges have immunity, and statements made during court proceedings are privileged. At this point, since the order was vacated, there's also no legal injury to be fixed.

Customer: replied 1 year ago.
What is the best course of action for the mother, now? Is there something that can be filed to turn this to her favor?
Expert:  Lucy, Esq. replied 1 year ago.

From what you've said, the decision IS in her favor. But she can file a Motion for Temporary Custody, asking the judge to let her keep the children pending a final order, if there has been a material change in circumstances since the original order was entered.

Customer: replied 1 year ago.
No order will ever be intentionally for her by this judge due to the associations of everyone involved, even though the people who have custody now are parents of registered child sex offenders. Is there another avenue, another court or authority to involve to force a "correct" decision? US Attorney, Supreme Court, etc.
Expert:  Lucy, Esq. replied 1 year ago.

The Supreme Court only takes cases that have been appealed up through the system. That means it's necessary to first appeal the decision, get a ruling from the Appeal Court, and then petition the Supreme Court for review.

If there is reason to believe the judge cannot or will not be impartial, a party can file a Motion for Recusal. And if there is any reason to believe the child is in danger where he or she is, then the mother could ask Child Services to investigate.

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