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In Georgia, the Courts favor stability for children. As a result the Courts have created a standard that requires the party that seeks a modification to prove that there has been a change in condition that affects the interests and welfare of the minor children. In other words, a parent cannot simply decide that he/she desires to be the primary physical custodian and expect the court to modify the current custodial arrangement. Often one parent starts to earn more money, purchases a bigger house, marries or has additional children and thinks that this should yield a custody modification. Of course there is the all too infamous decision to petition the courts because the noncustodial parent does not want to pay child support anymore.
Georgia requires a showing that there are new and material changes in conditions and circumstances SUBSTANTIALLY affecting the interest AND welfare of the child. The proof must show both a change in conditions and an adverse effect on the child. Some examples of material change that the Court may consider: 1. Voluntary relinquishement of the child by the custodial parent that is permanent in nature. grandparent, third party, noncustodial parent etc. 2. Instability in housing and basic needs of the minor child 3. Evidence of ongoing disregard of the Courts order of visitation 4. Evidence that the child improved in the environment with the noncustodial parent 5. Evidence that one parent demonstrated a pattern of attempting to poison the child against the other parent The applicable code section is O.C.G.A. 19-9-3(b): In any case in which a judgment awarding the custody of a child has been entered, on the motion of any party or on the motion of the judge, that portion of the judgment effecting visitation rights between the parties and their child or parenting time may be subject to review and modification or alteration without the necessity of any showing of a change in any material conditions and circumstances of either party or the child, provided that the review and modification or alteration shall not be had more often than once in each two-year period following the date of entry of the judgment. However, this subsection shall not limit or restrict the power of the judge to enter a judgment relating to the custody of a child in any new proceeding based upon a showing of a change in any material conditions or circumstances of a party or the child. A military parent's absences caused by the performance of his or her deployments, or the potential for future deployments, shall not be the sole factor considered in supporting a claim of any change in material conditions or circumstances of either party or the child; provided, however, that the court may consider evidence of the effect of a deployment in assessing a claim of any change in material conditions or circumstances of either party or the child. The Court has the discretion in these cases to examine the conditions and circumstances and ultimately decide how the interests of the children are affected.
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The statute that governs expungment in Georgia is O.C.G.A. 35-3-37. I have summarized the major components of the statute below:
1. An individual who was: (A) Arrested for an offense under the laws of this state but after the arrest is released by the arresting agency(police department, sheriff’s department or other law enforcement agency) without the offense being referred to the prosecuting attorney for prosecution; or (B) After the offense is referred to the proper prosecuting attorney, and the prosecuting attorney dismisses the charges without seeking an indictment or filing an accusation The individual may request the original agency(police department or sheriff’s department) in writing to expunge the records of such arrest, including any fingerprints or photographs of the individual taken in conjunction with such arrest, from the agency files. 2. Once the arresting agency receives the request, the agency shall provide a copy of the request to the proper prosecuting attorney. RIGHT TO EXPUNGEMENT An individual has the right to have his or her record of an arrest expunged, including any fingerprints or photographs of the individual taken in connection with the arrest, if the prosecuting attorney determines that the following criteria have been satisfied: ****Note: You must satisfy ALL of the requirements not just 1 or 2 **** (A) The charge was dismissed under the conditions that was listed above in Paragraph 1; (B) No other criminal charges are pending against the individual; AND (C) The individual has not been previously convicted of the same or similar offense under the laws of this state, the United States, or any other state within the last five years, excluding any period of incarceration What do I do if I meet the criteria: Go to your police department or sheriff’s department to obtain the form or if you google” expungment in georgia” you can view a copy of the form that is used. There are administrative fees that are charged to complete this process. The tough economic times have certainly taken a toll on the job market. It is not just those that are looking for jobs, but it has greatly affected those that are trying to keep working. Yes there are many lay offs and cutbacks at companies, butthis is not the effect that this blog will address. The effect for many employees has been a change in the work environment.
There is an attitude that permeates many companies today and that is supervisors or managers that treat employees as if they are easily replaced if they do not march to the drum beat of the manager. Many employees find themselves subjected to the constant threat that there are 50 more people that want your job. This has created a number of unjustified terminations and/ or suspensions. I have seen an increase in the number of people that come to the office for a consultation on the issue of “wrongful termination” The trick is that from a pure laymans perspective many of the parties that come to the office have been”wrongfully terminated. In Georgia, the legal perspective is that they do not have an action for a lawsuit. Georgia is an “employment at will” state. It is just as it sounds—You are employed at the will of your employer. You can be terminated for good reason, bad reason or no reason at all. If the employee is not represented by a union or has an internal grievance procedure, there is not much to offer to an employee in this state. The termination alone will not create grounds for a lawsuit. What if I have no disciplinary history? What if my company has steps of discipline that I was not offered before I was terminated? What if my boss just does not like me? What if my boss is just giving me a hard time and treats me with disrespect? Unfortunately in Georgia, the response is still the same. Public employees are an exception ,but look to the official code to determine if youare within the definition of a “public employee” If you have a contract of employment, you may have the protections provided by contract law or any other causes that arise from the contract. A contract for employment is governed by a specific time period. For example, a contract that hires you for a year. Be careful here because there are some employers that provide a contract, but put in the contract that it is an “employment at will” relationship. The Federal laws may provide recourse if you are in a protected class. Your employer CANNOT discriminate against you based on race, age, gender, religion, disability, pregnancy and/ or national origin. An employer cannot retaliate against you for alleging or charging that you have been discriminated against. If a party thinks this is an issue, a charge must be filed with the Equal Employment Opportunity Commission(EEOC) within 180 days of the occurrence. There are some exceptions to the time to file with state employees. You must file with the EEOC as it is a statutory requirement. Check out www.eeoc.gov to review the process and applicable statutes. If at any point an employee thinks that an employer is discriminating or a pattern of unfair treatment has occurred, keep a diary of events. Documentation with names, dates and description are extremely valuable to your attorney. In addition, familiarize yourself with the procedure in your employee handbook. It is important that you follow any steps for reporting as soon as you are aware of the potential discrimination. It will harm your case if you failed to follow the procedure for reporting this activity. Every employer does not have a procedure. Those that do will invariably use it against you in their defense for the employer. Consult an employment attorney as soon as possible. One of the most frequent issues that I encounter in practice is the unresolved issues of visitation and custodial decisions from men who have a child that was born outside of marriage. This issue becomes a war between father and mother with many assumptions about the reason the mother will not allow visitation that only results in lost time with the minor child. It strains the relationship in many cases to the point that I often hear that the child will understand when they reach the age of 18.
I am a firm believer that the attitude should be to get past the emotions and frustration and know your rights as a father. Georgia is a state that does not give the father an automatic entry in to visitation simply because the father proudly declares that he is the father. In Georgia, the old saying “mama’s baby and daddy’s maybe” takes shape in that the mother has the ultimate authority in all decisions regarding the minor child until such time as the child is legitimated. Keep in mind that paternity and legitimation is not the same thing. I often hear the father state that he signed the birth certificate and pays child support so he has a right to see the child. Not necessarily true in Georgia. Paternity in Georgia establishes the biological connection to the child but legitimation establishes the relationship between father and child. Some form of legitimation is necessary to pursue a relationship through visitation and if desired custodial rights. Legitimation in Georgia may be accomplished through two means in Georgia. 1) Mother and father can consent to legitimation at the time of birth or before the child’s first birthday by completing the acknowledgement of legitimation section at the bottom of the Paternity Acknowledgement Form. This form is typically completed at the time of birth of the child. I suggest that you handle this matter at that time if both parties are prepared to consent. As you might imagine, time and temperment may change depending on the relationship or lack of relationship after the birth of the child. Keep in mind that this section alone establishes paternity and just a mere signature on the paternity acknowledgement form is not enough. 2) If you have not completed this section and many parents do not complete this section , hope is not lost. The next step is to hire an attorney to file a Petition to Legitimate or find a website that has Georgia forms to start this process. The Petition should be filed in the county of the child’s mother or the party that may have legal guardianship of the child. I suggest that you file the Petition to Legitimate and Petition for Vistitation and/or Custody in the same petition to save money and time. It has been my experience that the biological mother rarely objects to legitimation. In fact, I encourage biological mothers to consent unless there is a strong,valid reason to object. There are reasons but it is not raised often. Initiating this process is very helpful with obtaining the ultimate goal of visitation. Often the parents are able to consent to a visitation schedule that both parties can live with. This consent becomes an ENFORCEABLE COURT ORDER. This is important because the other party will be obligated to follow this court order. If the order is not followed, the father has the right to file a Motion for Contempt (motion that says the party is not following the order and appropriate action should be taken by the court). The court frequently awards attorney’s fees to those that have to pursue such issues in Court. Stop waiting and pursue relationship with your children. A good resource that plainly lays out the process is Establishing Paternity and Legitimation under Georgia Law www.dhr.georgia.gov Welcome to my blog. I will use this space to have weekly topics and post information that will assist you with any legal needs that you have. Ignorance of the law is not a defense for breaking the law. Know your rights as a citizen. Ask your questions on the contact page, and join us weekly.
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Karla Walker, Esq.A progressive and aggressive attorney in South GA. Her experience over the past 17 years is testament to her work ethic and dedication. Archives
August 2012
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