Gildar v. Gildar
309 Ga. App. 730
| Ga. Ct. App. | 2011Background
- Final Judgment in 2005 awarded father sole custody and mother visitation with safeguards for one year due to mother's past drug/alcohol use.
- Judgment allowed lifting safeguards once conditions were met, with potential drug/alcohol testing if lifted, and possible reinstatement if tests were failed.
- If mother failed safeguards, supervised visitation at her expense and a clearance requirement from Dr. Fishman or approved physician.
- May 26, 2010: trial court found mother failed to demonstrate March 2010 test compliance; safeguards reinstated and required action to lift them.
- June 3, 2010: mother sought contempt against father; court denied contempt but suspended safeguards, allowing unsupervised visitation pending new conditions.
- Father appealed contending the court lacked authority to modify visitation terms; court held it had statutory discretion to modify visitation in contempt and to weigh the best interests of the child.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether court could modify visitation during contempt | Gildar argues no modification allowed in contempt. | Gildar contends statutory exception permits modification during contempt. | Court had authority to modify visitation. |
| Whether modification served the children’s best interests | Modification needed to safeguard children's normal life. | No evidence of danger; modification prudent. | Modification served the children’s best interests. |
| Whether there was competent evidence supporting maintenance of unsupervised visitation | Mother failed to prove safeguards no longer needed. | Evidence showed introspection, counseling, and abstinence; no present danger. | No abuse of discretion; unsupervised visitation permissible. |
| Whether the May 2010 reinstatement of safeguards was properly superseded | Safeguards remained in place pending compliance. | Circumstances had resolved; safeguards could be suspended. | Safeguards suspended; unsupervised visitation resumed. |
Key Cases Cited
- Carlson v. Carlson, 284 Ga. 143-144 (2008) (trial court may modify visitation during contempt proceedings)
- Hardin v. Hardin, 303 Ga.App. 416, 417(1), 693 S.E.2d 605 (2010) (burden on party to show error; discretion in visitation modification)
- Curtis v. Klimowicz, 279 Ga.App. 425, 427(2), 631 S.E.2d 464 (2006) (visitation modification is within trial court’s discretion)
- Dept. of Human Resources v. Allison, 276 Ga. 175, 178, 575 S.E.2d 876 (2003) (burden on appellant to show error by the record)