Slay v. Calhoun
332 Ga. App. 335
| Ga. Ct. App. | 2015Background
- Father (Justin Calhoun) filed a petition to legitimate his daughter K.C. and for custody, child support, and visitation; sought immediate custody via a Petition for Instanter Custody.
- Trial court issued a temporary order awarding Calhoun immediate temporary physical custody and found it had personal and subject-matter jurisdiction; juvenile court investigated the child’s best interests.
- After a final hearing, the trial court entered final custody and support orders awarding joint legal custody and primary physical custody to Calhoun, and a separate final order stating jurisdiction was moot because the temporary order had resolved it.
- Mother (April Slay), who had moved to Florida in August 2012, argued the trial court lacked subject-matter jurisdiction under the UCCJEA because Florida was the child’s home state.
- Evidence at the final hearing showed repeated periods when Calhoun or his mother cared for K.C. in Georgia, K.C. received most medical care in Georgia, and mother’s custodial stays in Florida were often temporary or unstable.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the UCCJEA governs subject-matter jurisdiction for child custody in a legitimation proceeding | Calhoun: legitimation statute (OCGA §19-7-22) controls jurisdiction; custody included in that petition | Slay: UCCJEA governs interstate custody jurisdiction | UCCJEA applies; legitimation statute governs venue/claims but does not displace UCCJEA jurisdictional rules |
| Whether Georgia was the child’s “home state” under the UCCJEA at commencement | Calhoun: child lived primarily in Georgia with him (person acting as a parent); Georgia thus home state | Slay: she resided in Florida so child’s home state is Florida | Court: evidence supported finding Georgia was home state; Georgia had jurisdiction under OCGA §19-9-61(a)(1) |
| Whether the trial court’s prior temporary order resolved jurisdictional challenge | Calhoun: temporary order found jurisdiction; final order correctly treated issue as disposed | Slay: challenged jurisdiction at final hearing despite temporary order | Court: absent transcript, appellate court assumes temporary hearing supported jurisdiction; final evidence consistent with that finding |
| Whether legitimation statute creates an exception to UCCJEA or independent jurisdictional basis | Calhoun: §19-7-22 authorizes filing and custody claims in legitimation actions, implying jurisdiction | Slay: UCCJEA controls interstate custody; legitimation doesn’t override it | Court: §19-7-22 affects venue/claims but cannot override UCCJEA; no implied exemption created |
Key Cases Cited
- Delgado v. Combs, 314 Ga. App. 419 (discussing de novo review of jurisdictional conclusions)
- Bellew v. Larese, 288 Ga. 495 (explaining UCCJEA adoption and purpose to avoid interstate jurisdictional conflict)
- Holmes v. Traweek, 276 Ga. 296 (holding venue, not subject-matter jurisdiction, governed by prior legitimation provision)
- Kuriatnyk v. Kuriatnyk, 286 Ga. 589 (appellate court must assume evidence supported lower court when transcript is absent)
- Hastings v. Hastings, 291 Ga. 782 (statutes dealing with same subject are construed together)
- Brenner v. Cavin, 163 Ga. App. 694 ("lived" in home-state definition refers to physical presence, not legal domicile)
- Petersen v. Tyson, 253 Ga. App. 431 (prior standing rule that father could not assert custody in legitimation absent mother’s consent)
- Powell v. Stover, 165 S.W.3d 322 (construction of "lived" in UCCJEA context as physical presence)