It’s July and the Law has Changed.
As an attorney it is critical that you stay abreast of all laws that can help or hurt your clients. As a family law practitioner, a large part of my time is spent helping people get more time with their children; and/or increasing or decreasing child support payments. As far as the family law attorney is concerned, we are in a very active time of year with the resumption of school upon us. School enrollment will often trigger Petitions to Modify Custody and Child Support in an effort to switch which parent has physical custody of a minor child, and where the child will go to school. In Georgia there is new law regarding Petitions to Modify Custody. Visitation is also part of custody, so this new law is also relevant for Modification of Parenting Plans.
In Georgia, changes in child custody are controlled, in party, by O.C.G.A, Article 2, Child Custody Interstate Jurisdiction Act, Section § 19-9-23. Actions to obtain change of legal or physical custody; use of certain complaints prohibited.
The old version of OCGA § 19-9-23 provided in relevant part:
(a) [A]ny complaint seeking to obtain a change of legal custody of the child shall be brought as a separate action in the county of residence of the legal custodian of the child.
(b) A complaint by [a] legal custodian seeking a change of legal custody or visitation rights shall be brought as a separate action in compliance with Article VI, Section II, Paragraph VI of the Constitution of this state.
(c) No complaint specified in subsection (a) or (b) of this Code section shall be made: (1) [a]s a counterclaim or in any other manner in response to a petition for a writ of habeas corpus seeking to enforce a child custody order; or (2) [i]n response to any other action or motion seeking to enforce a child custody order. . . .
What this meant from a parent’s perspective was that if your ex-spouse brought a Petition to Modify Custody against you, you were precluded from asserting a Counterclaim in which you asked the Court for custody in that particular action. A parent who was served with a Petition for Modification of Custody would need to bring their own action (and pay a new filing fee) against their ex-spouse. The former version of OCGA § 19-9-23 was not designed to promote judicial efficiency; and often resulted in the same Parties litigating the same issues, in two different Courts. Thankfully the new version of OCGA § 19-9-23, was signed into law on May 7, 2019, and took effect on July 1, 2019.
The new OCGA § 19-9-23 removes the requirement that a modification complaint be brought “as a separate action in the county of residence of [a] legal custodian” and explicitly authorizes “a counterclaim for modification of legal custody or physical custody in response to a complaint” for modification of the same. OCGA § 19-9-23 (a), (d).
Allowing a Counterclaim for modification will let the Parties to get full relief within one court case, and eliminates the possibility of inconsistent Court Orders. The new version of OCGA § 19-9-23 will also prevent the same parties from litigating the same issues in different Counties. Remember that under the old version of OCGA § 19-9-23 if the Parties did not reside in the same County they could be litigating the same issues in two different Courts, if the Respondent in the initial action also wanted to assert a claim for a modification. However, what has not changed is a Party’s ability to get attorney’s fees from the adverse Party.
Remember that OCGA §§ 19-6-15 (k) (5) and 19-9-3 (g) (among others) authorize the award of “reasonable and necessary attorney’s fees” and “reasonable attorney’s fees” in child support and custody matters respectively. These are not the only Statutes that will have your ex paying your legal bill, as there are several others that may apply. Once again, it is critical that your attorney know all of the Statutes that may help you or hurt you; while staying abreast of changes in the law.
Donato “Dan” Palumbo is a Partner with Palumbo Law LLC in Atlanta, Georgia. Dan engages in all aspects of family law litigation, including representing clients in divorce matters, custody cases, child support cases, contempt actions and modifications. In addition to family law, Dan is experienced in criminal litigation, including traffic tickets, DUI, misdemeanors, and felony cases. Dan has served as a Volunteer Attorney at the Ft. McPherson Veteran’s Association Legal Clinic. Dan has spoken at the American Bar Association Fall Conference 2018.
Dan is currently licensed to practice law in all Courts of Georgia; in New York State; before the United States District Court, Southern District of New York; and before the United States District Court, Northern District of Georgia. Dan is a retired professional firefighter. He served with the Eastchester Fire District in Eastchester, New York from April 1988 – December 2014. Dan is a member of the New York Police and Fire Retirees Association, and the International Association of Firefighters.
Dan can be reached at firstname.lastname@example.org, www.palumbolawga.com, www.mycousindanny.com, or 470-275-1500.