*1
Boykin rights.2
understood,
of,
his
advised
and
was
provide effective
did not
that trial counsel
2. Bullard asserts
any
plea hearing.
However, he did not raise
at his
assistance
corpus proceeding
this asserted enumeration
and
issue in his habeas
Dept.
nothing
appellate
presents
Natural
review. Ga.
for
of error
470) (1991).
County,
See
Resources v. Coweta
105) (2002).
Settles,
Decided Gregory Jordan, Hecht, Harris, Jon W. Mack Hecht, K. Mack & appellant. Mack, Harris, Jr., for Robert L. & Benjamin Attorney Pierman, General, Baker, H. Thurbert E. appellee. Attorney General, for Assistant v. DOUGLAS. S09A0363. DOUGLAS (678 SE2d
CARLEY, Justice. Gary Douglas (Mother) (Father) Douglas were Elizabeth and custody of the decree awarded in 1999. The final divorce divorced couple’s Department years one-year-old later, Two son to Father. petition Family court, filed a and Children’s Services of alleging seeking temporary deprived that the child was petition, entered Father and Mother to the final Prior agreement Mother. After a of the child to an to transfer into incorporated hearing, into an order provided Father, visitation Mother, for transferred that and relieved the obligations. Department further custodial writ of habeas later, Father filed a Six contending superior should be returned to that the child only temporary juvenile court order awarded him because the expired, custody legal he is still the child’s and has and that to Mother The habeas court to the divorce decree. petition, finding is the that Mother denied the charges understanding of the nature of the that he did not have an Bullard also asserts State, upon the fact against He relies him. See Green v. charges individually regarding plea hearing, that he when he was addressed that at the faced, entering dwelling burglary another “without house of the element of the crime of But, only burglary authority” specifically counts. the five referenced as to one of the five elements, entering and it was clear that the element counts each had the same counts, doing pertained authority” did element of so with the intent to all “without (a). commit a theft. See OCGA 16-7-1 *2 juvenile incorporating virtue of the court order to change custody. appeals. Father finding
1. Father claims that the habeas court erred in legal custody juvenile Mother has of the child to the court original jurisdiction order. Juvenile courts have exclusive over cases (a) (1) alleged § deprived. in which a child is to be OCGA 15-11-28 (C). juvenile authority In this court had to exercise its original jurisdiction allega exclusive because there was a bona fide deprived. tion that the child H., See In the K. Interest L. 281 of (636 117) (2006). App. deprivation 394, Ga. 395-396 SE2d In such a proceeding, juvenile temporary custody award to parent, authority grant permanent another custody but it does not have to § superior
absent transfer order from the court. OCGA (c) (1); App. F., 15-11-28 In 858, the Interest C. 199 Ga. 859 (1) (1991); App. SE2d C., 120, the Interest C. 193 121 Ga. (387 46) (1989). permanent custody SE2d Because the issue of juvenile modification of the divorce decree was not transferred to the superior juvenile only grant court from the court could temporary custody deprivation proceeding. to Mother in the Accord ingly, the habeas court erred when it concluded that the permanent custody court had awarded to Mother. disposed
Moreover, order, court’s which Department’s deprivation proceeding, expired aas matter of law two (a); § after it was entered. OCGA 15-11-58.1 In the Interest of (604 635) (2004). App. J., A. 269 Ga. fn. 2 SE2d Because temporary custody expired, Mother’s has the habeas court erred legal custody when it concluded that she has of the child and that Father’s claim of unlawful detainment of the child is not viable. See 846) (1978). (244 McGee, Wood 241 v. Ga. 243 SE2d
2. Father further contends that the habeas court order amounts improper change Georgia to an violation of the Child (the Act). § Intrastate Jurisdiction Act of 1978 OCGA seq. passage corpus Act, 19-9-20 et Prior to habeas was an appropriate process by change custody. which to seek a of child See (232 76) (1977); Tyree Matthews, Matthews v. Jackson, Ga. SE2d (177 160) (1970). However, January specifically Act, which became effective in of 1979, now prohibits complaint corpus the use of a in the nature of habeas § change (d); Munday seek a of child OCGA 19-9-23 283) (1979). Munday, Instead, the Act legal “any complaint seeking mandates that custody to obtain a brought separate
of the child shall be as a action county of residence of the custodian of the child.” OCGA (a). 19-9-23 longer
Although corpus to seek a no be used can seeking by legal custody, it can still be used in child Sills, 18-19 Alvarez v. order. See enforce a child brings However, where a even change custody may seeking complaint be action, no a habeas “[a]s to a other manner made a counterclaim seeking to enforce a child writ of habeas for a (c) (1). in Hutto v. This decision 19-9-23 Court’s order. . . OCGA *3 with this is consistent Hutto, 250 Ga. being change custody against statutory prohibition raised claim custody brought response enforce a child habeas action to in to a order. legal custody, action filed a habeas Hutto, mother, who had
In physical daughter father, who had her from the for the return of discretion, considered court exercised its The habeas custody to the father. Hutto and awarded best interests of the child noting supra reversed, that 117. This Court Hutto, at (a)] provides [OCGA case, in no whether that 19-9-24 complaint in to a habeas counterclaim physical petition, ... allowed to custodian “be shall legal against action for . . . custodian maintain custody custody long change of the child is so of child custody legal in custodian violation withheld from order.” omitted.) supra.
(Emphasis then held that Hutto, Hutto v. This Court present allowing physical custodian to “the the habeas court erred change custody] [to essentially maintain an action evidence and custody withholding though against legal even he was custody or- the mother ... violation of the child from supra. Hutto, der . . . .” Hutto v. Hutto, in that Father is the is similar to
The instant case properly brought decree, he to the divorce response, Mother not that decree. habeas action to enforce maintain an action custody merely changed change to based be resolved under the Rather, the habeas action must circumstances. (1) forth in Dein v. standard set given the discretion In that this Court cited custody under what is now OCGA courts to determine habeas explained 9-14-2, and then upon
“[t]he a writ of habeas trial child, is vested with a discretion the detention of a determining custody given. to whom its shall be Such governed by discretion should be law, the rules of and be party having prima exercised in favor of the right facie of the child unless the evidence shows that person right custody through has lost the one ways recognized [OCGA through 19-7-4], 19-7-1and [Cits.] (Emphasis supplied.) unfitness.” (1). supra
Dein v. Mossman, at 868 incorrectly The dissent claims that the habeas court should not apply standard, the Dein v. Mossman and should instead use the Rhoden, standard set forth in Dearman 704) (1975), which would allow for a based changed
on misplaced circumstances. The dissent’s reliance on Dearman prior
because it was decided to the effective date of the appropriate Act. Since that case was decided when it was still to seek proceeding, a considering change in a used, the standard it *4 applicable circumstances, in case, is not to this legal simply seeking in which the custodian is to enforce a child custody order.
Rather, as directed Dein v. the habeas court in this Father, legal case should have exercised its in discretion favor of right custody through custodian, unless he has lost his unfitness legal grounds or one of the set forth in 19-7-4, OCGA 19-7-1 and voluntary releasing parental rights, such as contract consent to adoption, provide necessaries, abandonment, failure to or cruel Gaines, treatment. See Columbus v. 519-520 (habeas 259) (1984) court affirmed it where denied father’s custody daughter away parental rights, for failed to because he contracted
provide child, necessities and abandoned and was unfit as a parent). “[i]t [mother] Nevertheless, should be noted that the is not may [she] proper complaint seeking without recourse as file the [the county in the in child of residence of the custodian].” supra Hutto, Hutto v. at 118.
Judgment except concur, Benham, J., All reversed. the Justices who dissents. BENHAM, Justice, dissenting. respectfully majority opinion. dissent to Division of the (c) § inapplicable
OCGA 19-9-23 to this case because mother any has not raised nor asserted claim or counterclaim for a in legal custody in to this habeas action. The habeas court’s unprompted decision to leave the child with his mother was an exercise of its own discretion to OCGA 9-14-2 which unequivocally provides: sought on account of the
In all writs of spouse all child, court on detention of a may whom the as to exercise its discretion facts custody given spouse shall shall be and or child power give third of a child to a have the person. supplied.)
(Emphasis Hutto, in Hutto v. Our decision statutory this mandate failed to reconcile newly time, enacted Child was, at that and what did not concern contem- Act. Hutto also Intrastate Jurisdiction parent non-legal plate custodial in the case at bar where facts as manipulation any wrongdoing or intentional innocent of is custody Indeed, Hutto, divorce decree. terms awarded authority, unilaterally non-legal without custodial acted withholding removing her from the the child from school custody by mother’s the child came into the this custodian. distinguished from Hutto. Thus, this be a lawful order. case (c) applies majority’s that OCGA 19-9-23 The insistence unjust has not lived with result. The child this case also leads to an removed from his father’s when the child was his father since 2001 improperly deprivation. suspicion did not His mother care on him lawful order of the child, but took abscond with the presumably order, on that the child and, reliance years, living 2002. For over six in the mother’s care since has been *5 challenge validity juvenile nothing done the father has rights as a custodian.1 or to otherwise assert his court order significantly disrupted and the mother life will be Now the child’s technicality penalized lack “reward” for the father’s in favor of a Georgia’s nothing goal diligence. to further the Such result does parental prevent kid- Act to Intrastate Jurisdiction Child napping. 1 challenge opportunity court order would have been The first thirty days entry but the father did not seek appealing of its on June the order within years opportunity legal rights appeal. on his came two later an The father’s second to act however, 15-11-58.1; expired per purportedly court order OCGA
June 2004 when the years. stability nothing rights appellant for almost four more “The did to assert his apparently [domestic family society an valid demands that one who intends to attack and of Vandiver, proceed promptness.” decree] with the utmost Amerson relations . .. should 850) (2009) (the (673 prohibit equitable applied laches the set SE2d doctrine of Ga. rights parental agreed father to the termination of his aside of a settlement wherein aside); Howington Howington, father waited four to move to set and where 464) (201 (1973) (1) (637 389) (claimant, Brooks, (2006); Ehrhart v. SE2d SE2d adoption). seeking years, to set aside four was barred laches from after Accordingly, particular in the circumstances of this would remand the matter to allow the habeas court to exercise its discretion custody pursuant by using to determine to OCGA 9-14-2 following standard:
[I]n
custody [made
order to
that award of
in a
decree]
necessarily
divorce
find that
the trial court does not
have to
parental
[his]
custodian has forfeited
rights
[OCGA
19-7-4],
under
19-7-1 and
In order to
change custody
“[t]here
from one
other,
to the
must
showing
party
originally
be a
that the
to whom
longer
awarded is no
able or suited to retain
or that
surrounding
the conditions and circumstances
the child
changed
have so
the welfare of the child would be
by modifying
original judgment.” [Cit.]
enhanced
704)
Rhoden,
Dearman v.
Decided June 2009. Harpe, Rainwater, Rainwater & David Gibbs, N. J. Mitchell for appellant.
Dewey Hayes, appellee. Jr., N.
S09A0440. GEORGIA PUBLIC DEFENDER STANDARDS
COUNCIL v. BUCHANAN et al.
SEARS, Chief Justice. The
appellant, Georgia Public Council, Defender Standards appeals prohibiting Attorney from the trial court’s order General Georgia representing attorney for the State of from Council an dispute appellee Cody Although fee with Buchanan’s counsel. Bucha- charges, including pled nan was indicted for numerous murder, he *6 guilty August pistol by possession to the misdemeanor of the of a person age eighteen1 under the and received First completed Offender treatment. Because Buchanan’s criminal case is respectfully disagree (1979), that Dein v. cited by majority, distinguishable sets forth the relevant standard to be used because it is insofar proceeding custody disputed parent as it concerns a habeas in which between a and a third party underlying adoption agreed in an rights. in which the had to terminate her OCGA 16-11-132.