330 Ga. App. 556
Ga. Ct. App.2015Background
- Father filed for divorce in Georgia on March 6, 2014 and sought sole legal and physical custody of the then-unborn child.
- Mother had left Georgia about one month earlier and was reportedly living in Oregon; the child was expected to be born in mid-May 2014.
- Mother challenged the Georgia trial court's jurisdiction over custody under the UCCJEA.
- On May 1, 2014 the trial court ruled that, "assuming the child is born in Oregon as anticipated," Oregon would have exclusive jurisdiction as the child’s home state.
- Father obtained interlocutory appellate review; the Court of Appeals vacated the jurisdictional ruling as an impermissible advisory opinion and remanded for reconsideration based on current facts (including events after the ruling).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a Georgia court properly may decide custody of an unborn child under the UCCJEA | Brende (father) argued the trial court could and should exercise jurisdiction at the time of its May 1 ruling | Mother argued a court cannot exercise UCCJEA jurisdiction over an unborn child and Georgia lacked jurisdiction because child would be born in Oregon | Vacated trial court's May 1 ruling as an advisory opinion; remanded for reconsideration under the current facts (including whether the child has been born and related events) |
| Whether a pre-birth declaratory custody ruling is permissible | Father sought declaratory relief to guide future actions | Mother opposed pre-birth declaratory ruling as premature | Court held declaratory judgment on a probable future contingency is an impermissible advisory opinion and must be vacated |
| Whether post-ruling events outside the record may be considered on appeal | Father asserted events after ruling (child born in Oregon, CPS involvement, placement with father) | Mother noted appellate review is limited to record before trial court at time of ruling | Court declined to consider facts not in the trial court record on appeal but remanded so trial court can consider subsequent events in the first instance |
| Proper forum for initial custody determination under UCCJEA when child’s residence is uncertain | Father: Georgia remained appropriate forum given parties’ prior residency and father's filing | Mother: Oregon would be the child’s home state if born there, so Georgia lacked jurisdiction | Court remanded for trial court to re-evaluate jurisdiction under OCGA §§19-9-41 and 19-9-64 in light of actual birth and current circumstances |
Key Cases Cited
- Baker v. City of Marietta, 271 Ga. 210 (declaratory judgment cannot be rendered for probable future contingency)
- Farmer v. State, 216 Ga. App. 515 (courts cannot take evidence from briefs or outside the record)
- Culberson v. Fulton-DeKalb Hosp. Auth., 201 Ga. App. 347 (same principle regarding record evidence)
- Huff v. Harpagon Co., 286 Ga. 809 (Georgia appellate courts may not issue advisory opinions)