Lopez v. Olson
314 Ga. App. 533
| Ga. Ct. App. | 2012Background
- Lopez appeals a Georgia final judgment under the UCCJEA modifying a prior Alaska custody order that awarded custody to the maternal grandparents with Lopez receiving visitation.
- The Alaska order (2007) granted legal and primary physical custody to the Olsons; Lopez acknowledged a different father for Kyle and a default custody judgment was entered against a John Doe for Evan.
- Lopez moved back to Georgia; Criste (father of Evan) sought to legitimize Evan and modify the Alaska order; Criste and the Olsons sought to have Georgia assume jurisdiction and modify custody.
- Georgia consolidated the Olsons’ and Criste’s petitions under UCCJEA after Alaska determined Georgia was the more appropriate forum and home state; trial proceeded with Lopez appearing pro se.
- Georgia court granted Criste’s petition to legitimate Evan and issued custody decisions—joint legal custody for some children, primary physical custody to the Olsons with Lopez certain visitation; the court vacated the Alaska custody order to the extent of modification and remanded for proper standard application.
- The appellate court affirmed the legitimation portion but vacated the custody ruling and remanded for proper reconsideration under the correct standard.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the Georgia court had subject-matter jurisdiction to modify the Alaska order under UCCJEA. | Lopez: Alaska order not registered; lack of registration/notice deprives Georgia of jurisdiction. | Olsons/Criste: Georgia has home-state and forum for modification; Part 2 controls. | Subject-matter jurisdiction not defeated; registration is non-jurisdictional; remand for proper standard. |
| Whether the Georgia court properly exercised jurisdiction over the pending Alaska custody case and related petitions. | Lopez contested treating Alaska case as ongoing before Georgia; improper transfer. | Georgia law (OCGA 19-9-63; 9-11-15) allows consolidation and trial of the petitions in Georgia. | Georgia properly assumed jurisdiction and proceeded under Part 2; not a mere transfer. |
| What standard of proof applies to custody disputes between a noncustodial parent and a third party holder of custody and whether harm must be shown. | Lopez entitled to Durden standard (clear and convincing harm) as in guardian context. | Olsons argue Durden applies; third-party custody requires showing harm and best interests. | Durden does not apply; standard is best-interest under OCGA 19-7-1(b.1) as construed in Clark/Boddie; remand for proper application. |
| Whether the trial court properly applied the harm standard and Clark factors in determining continued custody with the Olsons. | Lopez contends harm not shown; best-interest standard misapplied. | Olsons bear burden to show no harm and that continued custody serves welfare. | Remand to apply Clark/Boddie factors and harm standard consistent with OCGA 19-7-1(b.1). |
Key Cases Cited
- Durden v. Barron, 249 Ga. 686, 290 S.E.2d 923 (Ga. 1982) (permits strict standard for loss of custody to third party; burden on parent to prove fitness and best interests when permanency exists)
- Clark v. Wade, 273 Ga. 587, 544 S.E.2d 99 (Ga. 2001) (narrows best-interest standard to protect parental rights in custody disputes with third parties)
- Boddie v. Daniels, 288 Ga. 143, 702 S.E.2d 172 (Ga. 2010) (requires harm-based, narrowly construed best-interest approach in custody disputes with guardianships/third parties)
- Sanchez v. Walker County Dept. of Family and Children Services, 237 Ga. 406, 229 S.E.2d 66 (Ga. 1976) (considering mandatory notice and hearing requirements under due process in proceedings)
- Ex parte Davis, 82 So. 3d 695 (Ala. Civ. App. 2011) (interpreting UCCJEA-like provisions on modification without strict registration)