HILL Et Al. v. ILES
342 Ga. App. 820
| Ga. Ct. App. | 2017Background
- K.L., born 2007; parents married in 2008 but lived apart from 2009; father was not listed on birth certificate initially.
- In July 2012, maternal grandparents (the Hills) obtained temporary letters of guardianship in Walton County Probate Court with mother’s consent; father was served by publication because his address was alleged unknown.
- In August 2014, Father moved to vacate the guardianship and sought to prove paternity via DNA; probate court denied the motion because the DNA evidence lacked proper chain-of-custody/client ID.
- Father appealed to the Superior Court; after ordering a new DNA test, the superior court confirmed paternity in October 2016, terminated the Hills’ temporary guardianship, and awarded Father sole legal custody (and limited transition visitation).
- The Hills appealed only the portion of the order granting full legal custody to Father, arguing the superior court exceeded its authority because custody actions must be brought separately and mother lacked notice of the custody determination.
Issues
| Issue | Plaintiff's Argument (Hills) | Defendant's Argument (Father) | Held |
|---|---|---|---|
| Whether the superior court could award legal custody when the appeal concerned only vacating guardianship | The court lacked authority to change custody because OCGA § 19-9-23 requires a separate custody action | Court implicitly treated paternity and termination of guardianship as returning custody to parent; paternity confirmation supports custody award | The court erred: superior court lacked authority to award a change in custody in that proceeding — custody change must be brought as a separate action |
| Whether the Hills waived or invited the custody adjudication by participating at hearing | (Argued on appeal) custody adjudication was unauthorized regardless of participation | (Argued in concurrence) Hills tacitly asked the court to address placement and participated without clear objection | Majority did not reach waiver argument on merits; concurrence explains participation can preclude appellate complaint but majority vacated custody award on jurisdictional grounds |
Key Cases Cited
- Jackson v. Sanders, 333 Ga. App. 544 (appellate standard for custody modification review)
- Hammonds v. Parks, 319 Ga. App. 792 (trial court must have separate custody action to modify custody; improper to change custody in unrelated proceeding)
- Whitlock v. Barrett, 158 Ga. App. 100 (probate or superior court may not appoint guardian or alter parental custody so long as parent's right remains unquestioned)