Alberti v. Alberti
320 Ga. App. 724
Ga. Ct. App.2013Background
- Fractured family: Father and Mother are divorced; Mother custodial of their son; Father pays child support for daughter.
- Mother filed habeas corpus petition in Sep 2011 seeking custody relief, alleging Father illegally detained and withheld custody.
- Habeas hearing Aug/Sep 2011 indicated the court planned to grant relief and place children with Mother.
- Father filed a separate change-of-custody action in Sep 2011 in the Mother’s county of residence.
- Habeas writ entered Oct 5, 2011; court ordered immediate return of children to Mother; later, trial court found change of circumstances and awarded Father primary custody.
- Mother asserted OCGA § 19-9-23(c)(1) barred the Father’s action; appellate court held it was not so, and affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does OCGA § 19-9-23(c)(1) bar the change-of-custody action as a 'response' to habeas? | Father argues it is not a forbidden response but a separate action. | Mother argues the statute bars any counter or response in habeas proceedings. | Not barred; separate action permissible. |
| Is filing a separate custody action proper when a habeas petition seeks enforcement of custody? | Father may pursue a proper separate action in the custodial parent’s county. | Mother contends the habeas route precludes separate actions. | Yes, separate action appropriate under Hutto and Douglas. |
Key Cases Cited
- Wilson v. Baldwin, 239 Ga. App. 327 (1999) (interprets OCGA § 19-9-23(c) as equating counterclaims with complaints for purposes of prohibition)
- Terry v. Garibaldi, 274 Ga. App. 405 (2005) (supports view that § 19-9-23(c) clarifies counterclaims barred)
- Douglas v. Douglas, 285 Ga. 548 (2009) (allows a proper separate action for change of custody in county of residence; habeas not controlling)
- Hutto v. Hutto, 250 Ga. 116 (1982) (cites proper recourse to filed custody change in county of residence)