Scott v. Scott
311 Ga. App. 726
| Ga. Ct. App. | 2011Background
- The Scotts filed a custody petition on February 1, 2010 in Fulton County Superior Court seeking custody of their two minor granddaughters.
- The petition alleged the father was murdered by the children's mother, Lona Lee Scott, and that she was on trial for the murder.
- Petition asserts standing to seek custody under OCGA §§ 19-7-1(b.1) and 19-9-2 and contends the Scotts are fit and proper to receive custody.
- Lona Scott moved to dismiss for failure to state a claim and for insufficient service; the trial court granted the dismissal.
- The trial court ruled that to change custody a claimant must prove by clear and convincing evidence that parental custody would harm the child and that an award to the petitioner would best promote the child's welfare.
- The appellate court held that the petition, viewed in the light most favorable to the Scotts, gave fair notice of a potential custody claim and that the murder of a parent can be considered evidence of unfitness; the complaint did not require additional facts to survive.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the petition states a custody claim | Scott(s) allege murder by mother shows unfitness and need for grandparent custody. | Mother contends petition fails to allege unfitness or danger to the children beyond the murder allegation and seeks dismissal. | Yes; petition sufficient to survive dismissal. |
| Collateral estoppel applicability | Previous visitation ruling does not preclude custody petition. | Visitation order and findings should bar custody under collateral estoppel. | Collateral estoppel does not bar custody petition. |
| Res judicata under the Uniform Child Custody Jurisdiction and Enforcement Act | Different issues in custody petition than in visitation case; not barred. | Previous ruling should preclude custody claims as an earlier adjudication. | Res judicata does not bar the Scotts' custody petition. |
Key Cases Cited
- Stendahl v. Cobb County, 284 Ga. 525 (2008) (motion to dismiss reviewed de novo; pleadings construed in filing party's favor)
- Ga. Farm Bureau Mut. Ins. Co. v. Fowler, 177 Ga.App. 834 (1986) (concept that pleadings may survive if evidence could sustain relief within complaint)
- In the Interest of J.L.M., 204 Ga.App. 46 (1992) (murder of one parent by another can be considered as evidence of parental unfitness)
- Clark v. Wade, 273 Ga. 587 (2001) (clear and convincing standard for grandparent custody when proving unfitness)
- Tirado v. Shelnutt, 159 Ga.App. 624 (1981) (res judicata/claim preclusion principles in custody context)
- Rainey v. Lange, 261 Ga.App. 491 (2003) (evidence and findings relevant to grandparent visitation)
- Matherly v. Kinney, 227 Ga.App. 302 (1997) (collateral estoppel principles in Georgia appellate review)