2020 Georgia Code
Title 15 - Courts
Chapter 11 - Juvenile Code
Article 1 - General Provisions
§ 15-11-15. Transfers From Superior Court; Custody and Support

1. In handling divorce, alimony, habeas corpus, or other cases involving the custody of a child, a superior court may transfer the question of the determination of custody, support, or custody and support to the juvenile court either for investigation and a report back to the superior court or for investigation and determination.
2. 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 chapter in compliance with the order of the superior court, except that the parties shall not be entitled to obtain an appointed attorney through the juvenile court.
3. At any time prior to the determination of any question regarding custody, support, or custody and support, the juvenile court may transfer the jurisdiction of the question back to the referring superior court.
4. In handling criminal cases involving an accused who is in jeopardy of having his or her parental rights terminated due to criminal charges, a superior court may transfer a criminal case to a family treatment court division of a juvenile court for treatment and a report back to the superior court so long as the prosecuting attorney and accused agree to such transfer; provided, however, that such juvenile court may transfer such case back to the referring superior court at any time.

(Code 1981, §15-11-15, enacted by Ga. L. 2013, p. 294, § 1-1/HB 242; Ga. L. 2016, p. 443, § 1-5/SB 367.)

- Child custody proceedings generally, § 19-9-1 et seq.

Transfer of custody and support questions from Superior Courts, Uniform Rules for the Juvenile Courts of Georgia, Rule 5.2.

- For article, "An Outline of Juvenile Court Jurisdiction with Focus on Child Custody," see 10 Ga. St. B. J. 275 (1973). For article, "Child Custody - Jurisdiction and Procedure," see 35 Emory L. J. 291 (1986). For article on the 2016 amendment of this Code section, see 33 Georgia St. U.L. Rev. 139 (2016).

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Code 1933, § 24A-302, pre-2000 Code Section 15-11-6 and pre-2014 Code Section 15-11-30.1(b), which were subsequently repealed but were succeeded by provisions in this Code section, are included in the annotations for this Code section.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.

- Legislature enacted the provisions of former subsection (b) of O.C.G.A. § 15-11-6 (see now O.C.G.A. § 15-11-15) simply to provide specific authorization for the transfer of questions concerning custody and support to the juvenile court in those cases over which the superior court otherwise would exercise exclusive jurisdiction. In re D.N.M., 193 Ga. App. 812, 389 S.E.2d 336, cert. denied, 193 Ga. App. 910, 389 S.E.2d 336 (1989) (decided under former O.C.G.A. § 15-11-6).

- Subsection (b) of the former statute permitted superior courts handling divorce cases involving the custody of children to transfer the issue of custody to the juvenile court for investigation and report back to the superior court. It was not error for that report to contain a recommendation. Anderson v. Anderson, 238 Ga. 631, 235 S.E.2d 11 (1977) (decided under former Code 1933, § 24A-302).

Term "divorce cases," used in subsection (b) of former O.C.G.A. § 15-11-6 (see now O.C.G.A. § 15-11-15), includes contempt proceedings brought to enforce the provisions of a divorce decree. Hancock v. Coley, 258 Ga. 291, 368 S.E.2d 735 (1988) (decided under former O.C.G.A. § 15-11-6).

- Visitation rights are a part of child custody and as such are controlled by the law relating to custody and change of custody. Hopkins v. Hopkins, 237 Ga. 845, 229 S.E.2d 751 (1976) (decided under former Code 1933, § 24A-302).

- 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).

- 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).

- All superior courts of this state have jurisdiction over the subject matter of habeas corpus cases or cases in the nature of habeas corpus. Hopkins v. Hopkins, 237 Ga. 845, 229 S.E.2d 751 (1976) (decided under former Code 1933, § 24A-302).

- Proceeding in a juvenile court involving custody is a statutory custody action. A proceeding in the superior court involving custody is in the nature of habeas corpus. Hopkins v. Hopkins, 237 Ga. 845, 229 S.E.2d 751 (1976) (decided under former Code 1933, § 24A-302).

- If a change of circumstances is alleged subsequent to a decree of divorce awarding custody of a minor child to one of the two parties, it is not error for the judge of the superior court to transfer the investigation thus called for to the juvenile court for investigation. Slate v. Coggins, 181 Ga. 17, 181 S.E. 145 (1935) (decided under former Code 1933, § 24-2402(d)).

- Subsection (b) of former O.C.G.A. § 15-11-6 (see now O.C.G.A. § 15-11-15) carefully provided that a referral or transfer for investigation and determination shall proceed in the same manner as though the action originated in the juvenile court. That meant the former Juvenile Code substantive and procedural rules for termination of parental rights must be followed, which carefully delineate the grounds for termination; those persons upon whom summons shall issue, including parents, guardians, lawful custodians, and those in physical custody of the child; and other concerns. Hancock v. Coley, 258 Ga. 291, 368 S.E.2d 735 (1988) (decided under former O.C.G.A. § 15-11-6).

- In a custody controversy in the nature of habeas corpus, the juvenile court has concurrent jurisdiction to decide the issue only if the case is transferred to the juvenile court by proper order of the superior court. In such a transferred case, appellate jurisdiction is lodged in the Supreme Court of Georgia. In re J.R.T., 233 Ga. 204, 210 S.E.2d 684 (1974) (decided under former Code 1933, § 24A-302).

- Findings of fact and conclusions of law must be made by the trial judge and must be included in the record of transferred contested custody cases. Coleman v. Coleman, 238 Ga. 183, 232 S.E.2d 57 (1977) (decided under former Code 1933, § 24A-302).

Transfer of child custody case is continuation of that proceeding. Thus, a transfer order in a habeas corpus-child custody proceeding is not final and hence is not appealable without a certificate of immediate review. Fulton County Dep't of Family & Children Servs. v. Perkins, 244 Ga. 237, 259 S.E.2d 427 (1978) (decided under former Code 1933, § 24A-302).

- It is error for the issue of child custody to be decided on the basis of a report if either parent is denied access to the report and is thereby denied a hearing and the right to examine witnesses in an effort to refute the report. Anderson v. Anderson, 238 Ga. 631, 235 S.E.2d 11 (1977) (decided under former Code 1933, § 24A-302).

In cases originating in the superior court where referrals were made to the juvenile court or the Department of Family and Children Services for a written welfare report, the statute authorized the report, but it was error for the issue of child custody to be decided on the basis of that report if either parent was denied access to the report and thereby denied a hearing and the right to examine witnesses in an effort to refute the report. In re J.C., 242 Ga. 737, 251 S.E.2d 299 (1978), appeal dismissed, 441 U.S. 929, 99 S. Ct. 2046, 60 L. Ed. 2d 657 (1979) (decided under former Code 1933, § 24A-302).

- If a final order of a superior court, involving custody of children, expressly states that the order's findings are based in part upon a report prepared by a juvenile court, and the report is not filed or otherwise made available to either of the parties, the court's order cannot stand. Westmoreland v. Westmoreland, 241 Ga. 552, 246 S.E.2d 672 (1978) (decided under former Code 1933, § 24A-302).

- When the parties consent to the submission of the question of custody to the juvenile court, and after the report is received, it is further agreed that the superior court should then consider whether there has been a substantial change of condition since the divorce decree, and issue an order determining the matter of custody, any error by the superior court judge in having no independent hearing is waived by the parties. Haralson v. Moore, 236 Ga. 131, 223 S.E.2d 107 (1976) (decided under former Code 1933, § 24A-302).

- 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)

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.

- 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).

- 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).

- 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, § 39 et seq.

- 21 C.J.S., Courts, § 11 et seq. 43 C.J.S., Infants, § 180 et seq. 67A C.J.S., Parent and Child, § 366 et seq.

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

- 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.