Lead Opinion
Willie and Yvonne Hill, the maternal grandparents of K. L., a minor child, appeal the trial court’s award of sole legal custody of K. L. to her father, Gerren lies (“Father”). The Hills assert that the trial court erred in awarding Father sole legal custody of K. L. because (1) the only issue before the trial court was Father’s motion to vacate the Hills’ guardianship of K. L. and (2) K. L.’s mother (“Mother”) was not given notice of the pending action or hearing date.
The limited record shows that K. L. was born in 2007. Father was not listed on the birth certificate. Father and Mother later married in 2008 and moved to Texas to live with Father’s parents. In 2009, Mother took K. L. to Georgia, and in 2010, Mother sent K. L. to live with the Hills. In July 2012, with Mother’s consent, the Hills filed a petition for temporary letters of guardianship of K. L. in the Probate Court of Walton County. Because the Hills alleged that Father’s address was unknown, he was served by publication.
Just over two years later, in August 2014, Father filed a motion to vacate the order granting the temporary letters of guardianship. Father also attempted to introduce the results of a DNA test indicating he was the biological father of K. L. The Hills objected to Father’s motion, and Father later moved for a judgment on the pleadings. On May 12, 2015, the probate court denied Father’s motion, finding that, although the marriage of the mother and biological father of a child born out of wedlock and recognition of the child by the father shall render the child legitimate, the father must still prove he is the biological father. The probate court further found that the DNA report was insufficient to establish that Father was K. L.’s biological father because the report did not include a client identification form or chain of custody.
Father timely appealed to the Superior Court of Walton County. In June 2016, the trial court held a hearing and found the chain of evidence for Father’s initial DNA test was inadequate and ordered that a new test be completed. During a later hearing in October 2016, Father’s paternity was confirmed.
2. Based on our holding in Division 1, we need not reach the Hills’ second enumeration of error.
Judgment vacated and case remanded.
Father has not filed a response brief on appeal.
There appears to have been uncertainty for some time as to whether Father was K. L.’s biological father.
The trial court also confirmed that, although Mother and Father had lived in separate states since 2009, they were still legally married.
On appeal, the Hills contest only that portion of the trial court’s order granting full legal custody to Father and do not challenge the termination of the letters of guardianship.
Concurrence Opinion
concurring specially
While I concur fully with the majority opinion, I write separately to further explain my analysis of this case.
Relying on the facts as outlined in the majority, it is undisputed that the mother and father are still legally married and, other than the temporary guardianship at issue in this case, it does not appear from the record that there has been any other proceeding that, as of yet, ascertained and declared that either parent had lost or given up any custodial rights to the child or, in the alternative, that one parent has a superior custody right over the other parent or a specified third party Therefore, it necessarily follows that once the trial court determined that the temporary guardianship should be terminated, custody would be returned to the parents as both are still the natural guardians of the child. See Whitlock v. Barrett, 158 Ga. App. 100, 103 (279 SE2d 244) (1981). Therefore, the most the trial court could have done would have been to return full custody to both parents. Any delineation of custody and/or visitation between the parents or to a third party would have exceeded the trial court’s authority. See id. (finding that “neither the probate court of that county nor the superior court hearing an appeal from the probate court had the jurisdiction to appoint a guardian over the person of the child so long as appellant’s [i.e., the natural mother’s] right to custody . .. and her
Significantly, the maternal grandparents did not appeal the trial court’s decision to terminate the guardianship and, based on the record, they did not clearly object when the trial court announced its intention to terminate the guardianship. Rather, when the court made that announcement, the grandparents responded that their only request was that if the court was “entering an order” designating the child’s placement that day, that the child would stay “where she is, where she’s been.” The grandparents stated that “there’s no reason today’s not set for a temporary hearing on the custody issue.” The grandparents then asked the court to appoint a guardian ad litem “to make sure the child should be with [the father] but if so[,] then the transition,” adding that the appointment would ensure “that this child ... is not uprooted from the only home she remembers and moved.” The court replied that it would appoint a guardian ad litem, but not necessarily to help with a “transition.” The court thereafter discussed with the parties various custody and visitation matters, which discussion the grandparents participated in without voicing any objection.
In short, the grandparents tacitly asked the trial court to address the custody issue of which they complain on appeal, with the end result being that they got exactly what they requested — the blurring of the instant guardianship case with a separate custody action. See Graybill v. Attaway Constr. & Assocs., 341 Ga. App. 805, 808-809 (1) (802 SE2d 91) (2017) (a party cannot participate and acquiesce in a trial court’s procedure and then complain of it); Oglethorpe Power Corp. v. Estate of Forrister, 332 Ga. App. 693, 699 (2) (b) (774 SE2d 755) (2015) (a party cannot be heard to complain on appeal of error induced by his own conduct, nor to complain of errors expressly invited by him at trial).
