JEWELL v. McGINNIS Et Al.
341 Ga. App. 896
| Ga. Ct. App. | 2017Background
- Grandparents sought emergency custody of their granddaughter when the child was six; litigation has continued and the child is nearly ten.
- On first appeal (Jewell I), this Court vacated an order granting joint legal custody to the mother and the grandparents and remanded for required findings under OCGA § 19-7-1(b.1).
- On remand the superior court found, by clear and convincing evidence, that placing the child with the mother would cause both physical harm and significant, long-term emotional harm, and again awarded joint legal custody to mother and grandparents with primary physical custody to grandparents.
- The mother appealed, arguing (among other things) that OCGA § 19-9-6 does not authorize joint legal custody between a parent and a third party and that the harm findings were unsupported.
- The panel unanimously held the superior court had no authority to award joint legal custody to a parent and third party and reversed that portion of the order; Judge McFadden (concurring specially) also would reverse the harm findings as unsupported by clear and convincing evidence.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether OCGA § 19-9-6 authorizes joint legal custody between a parent and a third party | Jewell: statute only contemplates parents; joint legal custody to a parent and third party is unauthorized | Grandparents: joint legal custody appropriate given child’s welfare and prior findings | Court: Reversed — statute does not authorize joint legal custody between a parent and nonparent; superior court lacked power to grant it |
| Whether grandparents met clear-and-convincing burden under OCGA § 19-7-1(b.1) to overcome parental-presumption by showing parental custody would cause physical or significant long-term emotional harm | Jewell: trial court’s findings (bond with grandparents, child anxiety, counseling disruption, mother’s prior relationships, photos/social media, minor injuries, weight gain) insufficient to prove required harm | Grandparents: evidence showed anxiety, counseling issues, risky parental circumstances and therefore harm | Held: (Majority did not need to decide given Division 1). Concurring opinion (McFadden) – evidence insufficient; would reverse harm finding |
| Proper remedy after erroneous joint legal custody award | Jewell: remand for proceedings consistent with statutory scheme and custody standards | Grandparents: seeks affirmation of custody order | Held: Reversed joint legal custody award; case remanded for further proceedings consistent with opinion |
| Role of parent’s private conduct (cohabitation, photos, social media) in proving harm | Jewell: such conduct alone, without evidence child was harmed or exposed to inappropriate conduct, cannot defeat parental rights | Grandparents: argued conduct showed potential harm or risk to child | Held: Court and concurrence: speculation about teasing/social consequences or meretricious relationships insufficient without evidence of actual harm |
Key Cases Cited
- Jewell v. McGinnis, 333 Ga. App. 108 (2015) (prior appeal vacating custody order and remanding for required findings)
- Clark v. Wade, 273 Ga. 587 (2001) (constitutional gloss requiring harm findings under OCGA § 19-7-1(b.1))
- Trotter v. Ayres, 315 Ga. App. 7 (2012) (explaining OCGA § 19-7-1(b.1) burden and harm standard)
- Stone v. Stone, 297 Ga. 451 (2015) (third party may have sole legal custody where no parent suitable; statute supports joint legal custody only between parents)
- Bell v. Taylor, 334 Ga. App. 267 (2015) (temporary stress/discomfort insufficient to overcome parental custody rights)
- Strickland v. Strickland, 298 Ga. 630 (2016) (example of clear-and-convincing harm finding where parental circumstances demonstrated severe risks)
- Harris v. Snelgrove, 290 Ga. 181 (2011) (clear-and-convincing evidence of physical and emotional harm where drugs, violence, and parental misconduct were present)