A common question that arises in custody cases is where a change of custody should be filed. A recent Georgia Court of Appeals case is instructive on this issue. InSumner v. Batchelor, the Court of Appeals reversed the Effingham County Superior Court’s denial of a motion to dismiss a petition for change of custody based on a lack of jurisdiction. The divorce case had been filed in Effingham County previously, and the mother was awarded custody of the couple’s minor children. Thereafter, she the children moved to Chatham County. Subsequently, the father filed a change of custody action in the Effingham County Superior Court. The petition actually stated that the mother was residing in Chatham County. The court subsequently granted the father’s request for ex parte relief and awarded custody of the children to him. The mother then filed a motion to dismiss the petition and to vacate the ex parte order, but the trial court denied the motion, finding that venue was proper in Effingham him County based on "the best interests of the children."
On appeal, the case was reversed pursuant to the requirements of OCGA § 19-9-23(a), which requires that "any 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." Therefore, the trial court had no jurisdiction to entertain the petition to modify custody and it should have granted the motion to dismiss.
Change of custody cases are among the most difficult cases that superior courts in Georgia hear. Always seek the advice of an attorney for advice on your particular circumstances and to learn about your legal rights.
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