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Transfers of Guardianships to Georgia Juvenile Courts

Posted by attorney Merlinus Monroe

The Georgia Code provides certain guidelines for transfer of a case to juvenile court. The basic standard for transfers to juvenile court is found in Section 15-11-30.1 of the Official Code of Georgia subsection (a)(1), which states very plainly that "[t]he court is vested with jurisdiction to appoint a guardian of the person or property of any child and with jurisdiction over proceedings involving any child whose custody is the subject of controversy".

Therefore, under the basic rule for the juvenile court to create a guardianship, the custody of the child must be in controversy. In other words, if the child does not have an established legal or natural guardian (whose rights over the child aren't subject to limitation beyond the limitations enjoyed by other legal or natural guardians), the juvenile court is empowered (and, arguably, required) to appoint a guardian for that child (to protect the person, the property, or both). The Code section goes further than mere powers of appointment, however, extending this power in subsection (2)(D) , by providing that "[t]he court shall retain jurisdiction over a guardianship action under this paragraph for the sole purpose of entering an order following the filing of a petition to modify, vacate, or revoke the guardianship and to appoint a new guardian". That same subsection permits concurrent jurisdiction with superior court on the guardianship, saying explicitly that "[t]he superior courts shall have concurrent jurisdiction for enforcement or modification of any child support or visitation order entered pursuant to this Code section."

Though the standard for evaluation throughout the Code section is "the best interests of the child", but the Code section mixes these standards for modification, vacation, or revocation of a guardianship through superior court, requiring a finding "by clear and convincing evidence, that there has been a material change in the circumstances of the 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 interest of the child". Of course, any act taken is subject to the same rules set down by the Code section for notice and hearing.

It is interesting to note that the juvenile court is bound, to some degree, by its area of expertise, under subsction (b), which allows "[o]ther courts, in handling divorce, alimony, habeas corpus, or other cases involving the custody of a child or children" to "transfer the question of the determination of custody, support, or custody and support to the juvenile court for investigation and a report back to the superior court or for investigation and determination. If the referral is for investigation and determination, then the juvenile court shall proceed to handle the matter in the same manner as though the action originated under this article in compliance with the order of the superior court. At any time prior to the determination of any such question, the juvenile court may transfer the jurisdiction of the question back to the referring superior court." This Code subsection seems to imply that the case involving the determination to be made was the superior court, because it refers to transferring the case "back" to superior court. However, the Code section expressly refers to "[o]ther courts" that must make a "determination of custody, support, or custody and support".

In other words, the juvenile court has no choice except to continue with such things if they are referred to them, until they refer them "back" to superior court.

Additional resources provided by the author

Publication-

"Georgia Guardianships and Conservatorships" by Mary K. Radford, Chattahoochee Legal Press (publisher)

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