Summary
The Georgia Supreme Court affirmed the denial of Entrekin’s petition for a writ of habeas corpus seeking custody of her child after the child’s father died. The court held that the divorce decree and parenting plan did not definitively award custody to the paternal aunt upon the father’s death, and that the aunt was not barred from seeking custody under OCGA § 19-9-24(a). The court further held that clear and convincing evidence supported the trial court’s finding that Entrekin was presently unfit to have custody.
Topics
Practice areas
Questions Presented
- Whether OCGA § 19-9-24 (a) barred Friedman from seeking custody because she was withholding the child from Entrekin.
- Whether the trial court erred in finding that clear and convincing evidence overcame the presumption that the surviving parent was entitled to custody.
Holdings
- OCGA § 19-9-24 (a) applies only when custody is withheld in violation of an existing custody order. Because the final divorce decree did not award Entrekin physical custody upon Kaminsky's death, Friedman was not absolutely barred from seeking custody.
- The trial court properly found that clear and convincing evidence established Entrekin's present unfitness to have custody, and therefore properly denied her petition for a writ of habeas corpus.
Key quotations
“Such an expression cannot reasonably be understood to amount to a definitive and binding directive as to custody of the child upon the death of the father.” (294 Ga. at 430)
“This evidence amounts to clear and convincing evidence of a present unfitness to have custody of the child, and for that reason, the trial court did not err when it denied the petition for a writ of habeas corpus.” (294 Ga. at 431)
Factual background
Entrekin and Jay Allen Kaminsky divorced in 2009 under a parenting plan granting them joint legal custody while giving Kaminsky physical custody of their son. The plan expressed the parents' desire that Kaminsky's sister, Toby Kaminsky Friedman, receive physical custody if Kaminsky died, but it did not definitively award custody upon that contingency. After Kaminsky died in 2013, Friedman and other family members took custody of the child and refused to surrender him to Entrekin. The trial court found Entrekin unfit based on her history of alcohol and prescription-drug addiction, DUI-related conduct, probation violations, prescription-medication concerns, failure to seek modification of supervised visitation, and lack of knowledge concerning the child's special needs.
Procedural history
After the child's custodial father died, Entrekin petitioned for habeas corpus, asserting that she was entitled to custody as the surviving parent. Friedman separately petitioned for custody. The Chatham Superior Court denied Entrekin's habeas petition, awarded Friedman temporary custody, and allowed Entrekin supervised visitation. The Supreme Court of Georgia affirmed.