Syfert Injury Law Firm

Your Trusted Partner in Personal Injury & Workers' Compensation

Call Now: 904-383-7448

2018 Georgia Code 15-11-244 | Car Wreck Lawyer

Link to State of Georgia Official Statute 2018 Georgia Code Annotated (sourced from legal.resource.org)
O.C.G.A. 15-11-244 Case Law from Google Scholar Amendments to OCGA 15-11-244

TITLE 15 COURTS

Section 11. Juvenile Code, 15-11-1 through 15-11-747.

ARTICLE 3 DEPENDENCY PROCEEDINGS

15-11-244. Modification of permanent guardianship order.

  1. The court shall retain jurisdiction over a guardianship action under this part for the sole purpose of entering an order following the filing of a petition to modify, vacate, or revoke the guardianship and appoint a new guardian.
  2. The superior courts shall have concurrent jurisdiction for enforcement or modification of any child support or visitation order entered pursuant to Code Section 15-11-240.
  3. The guardianship shall be modified, vacated, or revoked based upon a finding, by clear and convincing evidence, that there has been a material change in the circumstances of the child who was adjudicated as a dependent child or the guardian and that such modification, vacation, or revocation of the guardianship order and the appointment of a new guardian is in the best interests of the child. Appointment of a new guardian shall be subject to the provisions of Code Sections 15-11-240 and 15-11-241.

(Code 1981, §15-11-244, enacted by Ga. L. 2013, p. 294, § 1-1/HB 242.)

Cross references.

- Power of judge of probate court to appoint guardian for minor, § 29-2-14.

Notice requirements relating to appointment of guardians for minors by judges of the probate court generally, § 29-2-17.

JUDICIAL DECISIONS

Editor's notes.

- In light of the similarity of the statutory provisions, decisions under former Code 1933, § 24A-302, pre-2000 Code Section 15-11-6 and pre-2014 Code Section 15-11-30.1, which were subsequently repealed but were succeeded by provisions in this Code section, are included in the annotations for this Code section. See the Editor's notes at the beginning of the chapter.

Jurisdiction of juvenile court in transferred custody proceeding.

- In a custody proceeding transferred from the superior court, the juvenile court was authorized to issue an order restraining the future disclosure of information contained in the juvenile court's files and records and to punish for contempt any past unauthorized disclosure of that material. In re Burton, 271 Ga. 491, 521 S.E.2d 568 (1999) (decided under former O.C.G.A. § 15-11-6).

Restoration of fitness to previously unfit parent.

- Juvenile court erred when the court dismissed a father's petition because by alleging a restoration to fitness, the father alleged a material change in circumstances to change the permanent guardianship of the child and, therefore, stated a claim under O.C.G.A. § 15-11-244 upon which relief might properly be granted so long as the father proved that material change in circumstances clearly and convincingly and that custody was now in the child's best interest. In the Interest of M. F., 298 Ga. 138, 780 S.E.2d 291 (2015).

Restoration of fitness is material change of condition.

- Georgia Supreme Court holds that it is not unreasonable to understand O.C.G.A. § 15-11-244(c) to include the restoration of fitness to a previously unfit parent as among the material changes in the circumstances of a child that would permit a modification, vacatur, or revocation of a permanent guardianship. In the Interest of M. F., 298 Ga. 138, 780 S.E.2d 291 (2015).

Award of permanent guardianship affirmed.

- Award of permanent guardianship to the aunt was affirmed because the parent gave no reason to believe that any objection to taking judicial notice of the deprivation order would have had any merit, nor did the parent identify specific evidence that the parent would have brought forward to challenge the earlier deprivation order. In the Interest of L. B., 319 Ga. App. 173, 735 S.E.2d 162 (2012) (decided under former O.C.G.A. § 15-11-30.1)

Order of visitation improper.

- Juvenile court erred by granting visitation to the guardians and ordering the father to undergo counseling because the juvenile court's order revoked the guardianship and, thus, left the juvenile court without authority or jurisdiction to place the complained of restraints upon the father's custodial rights. In the Interest of M. F., 345 Ga. App. 550, 813 S.E.2d 786 (2018).

OPINIONS OF THE ATTORNEY GENERAL

Editor's notes.

- In light of the similarity of the statutory provisions, decisions under former Code 1933, § 24A-302 and pre-2000 Code Section 15-11-6, which were subsequently repealed but were succeeded by provisions in this Code section, are included in the annotations for this Code section. See the Editor's notes at the beginning of the chapter.

Jurisdiction to appoint guardians for children.

- Former statute implicitly recognized that courts other than juvenile courts had jurisdiction to appoint guardians for children. 1976 Op. Att'y Gen. No. U76-15 (decided under former Code 1933, § 24A-302).

Support proceedings.

- Subsection (b) of former O.C.G.A. § 15-11-6 (see now O.C.G.A. § 15-11-15) authorized the superior court to transfer to the juvenile court support cases not involving a question of paternity as well as those support proceedings originating from a court-established support unit in the judicial circuit. 1989 Op. Att'y Gen. No. U89-7 (decided under former O.C.G.A. § 15-11-6).

Superior court may not transfer a Uniform Reciprocal Enforcement of Support Act proceeding to a juvenile court under subsection (b) of former O.C.G.A. § 15-11-6 (see now O.C.G.A. § 15-11-15). 1989 Op. Att'y Gen. No. U89-7 (decided under former O.C.G.A. § 15-11-6).

Paternity questions.

- Since no provision under subsection (b) of former O.C.G.A. § 15-11-6 (see now O.C.G.A. § 15-11-15) would permit the transfer of paternity questions to a juvenile court, no case in which paternity was involved may be transferred under that statute by a superior court to a juvenile court. 1989 Op. Att'y Gen. No. U89-7 (decided under former O.C.G.A. § 15-11-6).

Permanent custody determination upon divorce decree.

- When a superior court transfers the question of custody determination to a juvenile court pursuant to subsection (b) of former O.C.G.A. § 15-11-6 (see now O.C.G.A. § 15-11-15), the juvenile court may make only a temporary custody determination pending the outcome of the divorce action; but if the divorce decree is entered the juvenile court can then make a permanent custody determination. 1994 Op. Att'y Gen. No. U94-1 (decided under former O.C.G.A. § 15-11-6).

RESEARCH REFERENCES

Am. Jur. 2d.

- 42 Am. Jur. 2d, Infants, § 27 et seq. 47 Am. Jur. 2d, Juvenile Courts and Delinquent and Dependent Children, § 40 et seq.

C.J.S.

- 21 C.J.S., Courts, § 343 et seq. 43 C.J.S., Infants, § 180 et seq. 67A C.J.S., Parent and Child, § 366 et seq.

U.L.A.

- Uniform Juvenile Court Act (U.L.A.) § 3.

ALR.

- Parent's involuntary confinement, or failure to care for child as result thereof, as evincing neglect, unfitness, or the like in dependency or divestiture proceeding, 79 A.L.R.3d 417.

Cases Citing O.C.G.A. § 15-11-244

Total Results: 1  |  Sort by: Relevance  |  Newest First

Copy

in the Interest of M.F., a Child, 298 Ga. 138 (Ga. 2015).

Cited 48 times | Published | Supreme Court of Georgia | Nov 23, 2015 | 780 S.E.2d 291

...abuse, that he now is a fit parent, and that he ought to have custody of his daughter. Although the petition was denominated a “complaint for custody,” the Gwinnett County court construed it as a petition to modify, vacate, or revoke the guardianship pursuant to OCGA § 15-11-244....
.... . [f]or permanent guardianship brought pursuant to the provisions of Article 3 of this chapter”); OCGA § 15-11-240 (a) (“the juvenile court shall 3 In response to the motion to dismiss, the father asserted that, if OCGA § 15-11-244 does not authorize a modification, vacatur, or revocation of a permanent guardianship in the circumstances that he alleges, the statute is unconstitutional....
...an for a child whose custody is a subject of controversy before the court as a result of an adjudication that the child is deprived . . . .”). 4 the guardianship and appoint a new guardian.” OCGA § 15-11-244 (a).5 The superior courts have concurrent jurisdiction over permanent guardianships, but only with respect to the “enforcement or modification of any child support or visitation order entered [in connection with the permanent guardianship].” OCGA § 15-11-244 (b).6 And for so long as an order of permanent guardianship remains effective, permanent custody of the child is committed to the permanent guardian as a matter of law....
...circumstances had changed since the order was entered, asserted that he now “is a fit and proper parent is able to assume the responsibilities of full custody of [M.F.],” and alleged that it is in the best interest of M.F. to be in the custody of her father. See OCGA § 15-11-244 (c) (providing that certain changed circumstances can form the basis for a modification, vacatur, or revocation of a permanent guardianship)....
...petition, the father contends, it erred when it dismissed the petition for failure to state a claim upon which relief can be granted. With that contention, we agree. The proper grounds for a petition to modify, vacate, or revoke a permanent guardianship are identified in OCGA § 15-11-244 (c)9: The guardianship shall be modified, vacated, or revoked based upon a finding, by clear and convincing evidence, that there has been a material change in the circumstances of the child who was adjudicate...
...of the child,” sufficient to authorize the juvenile court to set aside the guardianship of M.F. The guardians respond that the entry of an order of permanent guardianship forever stripped the father of his parental rights, and in any event, OCGA § 15-11-244 (c) affords the father here no possibility of relief because the father has alleged no “material change in the circumstances of the child,” only a change in his own circumstances. We begin with the nature of the legal relationship that now exists between the father and M.F....
...Moreover, the statutory provisions for permanent guardianships expressly contemplate that an earlier ordered permanent guardianship may be revisited upon the “filing of a petition to modify, vacate, or revoke the guardianship and appoint a new guardian,” OCGA § 15-11-244 (a), and they contemplate that the permanent guardianship “shall be modified, vacated, or revoked” upon clear and convincing proof of the requisite change in circumstances, accompanied by clear and convincing proof that the modification, vacatur, or revocation is in the best interest of the child. OCGA § 15-11-244 (c)....
...guardianship to work a termination of parental rights.11 About the argument that the father only alleges a change in his own circumstances and has failed, therefore, to allege “a material change in the circumstances of [M.F.],” the guardians read OCGA § 15-11-244 too narrowly. It is true that, to permit a modification, vacatur, or revocation of a permanent guardianship, the statute requires “a material change in the circumstances of the child . . . or the guardian.” OCGA § 15-11-244 (c)....
...law — constitutional, statutory, and common law alike — that forms the legal background of the statutory provision in question.” May v. State, 295 Ga. 388, 391-392 (761 SE2d 38) (2014) (citations omitted). As important context for OCGA § 15-11-244, we note that the law generally recognizes a presumption that a child ordinarily belongs in the care and custody of her parents....
...the care and custody of his child may amount to “a material change in the circumstances of the child,” as these words most naturally would be understood in the relevant context. That, we conclude, is the most reasonable understanding of OCGA § 15-11-244 (c).12,13 12 Not every change in the circumstances of a parent will amount to a material change in the circumstances of a child....
...Consider, for instance, a fit parent who is comatose for a long period of time following a traumatic accident, a condition that, her physicians conclude, is almost 12 Moreover, if we were to understand OCGA § 15-11-244 (c) as the guardians do, it would pose serious questions about the constitutionality of the statutes concerning permanent guardianships....
...Parkerson, 265 14 Ga. 189, 191-194 (2) (454 SE2d 769) (1995) (finding grandparent visitation statute to work an unconstitutional infringement of parental rights). Accordingly, to the extent that there were any ambiguity about the meaning of OCGA § 15-11-244 (c) in this context, we would invoke the doctrine of constitutional doubt and construe the statute so as to avoid the serious constitutional concerns that would otherwise be raised....
...568, 575 (108 SCt 1392, 99 LE2d 645) (1988). Here, even if it were not 15 the only reasonable way in which to understand the statute, it certainly is not unreasonable — as we explained earlier — to understand OCGA § 15-11-244 (c) to include the restoration of fitness to a previously unfit parent as among the material changes in the circumstances of a child that would permit a modification, vacatur, or revocation of a permanent guardianship....
...Here, the petition of the father alleges the material change in circumstances that would be required to permit the modification, vacatur, or revocation of the permanent guardianship of M.F. Accordingly, his petition states a claim under OCGA § 15-11-244 upon which relief might properly be granted, so long as the father proves that material change in circumstances clearly and convincingly, and so long as he proves as well that his custody of M.F....
...But the juvenile court erred when it dismissed the petition, and we reverse the judgment of dismissal. The trial court also erred when it awarded attorney fees to the guardians on the ground that the petition “was without any basis as outlined in OCGA § 15-11-244,” and so, we reverse the award of attorney fees as well. Judgment affirmed in part and reversed in part....