2020 Georgia Code
Title 19 - Domestic Relations
Chapter 9 - Child Custody Proceedings
Article 3 - Uniform Child Custody Jurisdiction and Enforcement Act
Part 2 - Jurisdiction
§ 19-9-61. Jurisdiction Requirements for Initial Child Custody Determinations; Physical Presence Alone Insufficient

1. Except as otherwise provided in Code Section 19-9-64, a court of this state has jurisdiction to make an initial child custody determination only if:
   1. This state is the home state of the child on the date of the commencement of the proceeding, or was the home state of the child within six months before the commencement of the proceeding and the child is absent from this state but a parent or person acting as a parent continues to live in this state;
   2. A court of another state does not have jurisdiction under paragraph (1) of this subsection, or a court of the home state of the child has declined to exercise jurisdiction on the ground that this state is the more appropriate forum under Code Section 19-9-67 or 19-9-68 and:
      1. The child and the child's parents, or the child and at least one parent or a person acting as a parent, have a significant connection with this state other than mere physical presence; and
      2. Substantial evidence is available in this state concerning the child's care, protection, training, and personal relationships;
   3. All courts having jurisdiction under paragraph (1) or (2) of this subsection have declined to exercise jurisdiction on the ground that a court of this state is the more appropriate forum to determine the custody of the child under Code Section 19-9-67 or 19-9-68; or
   4. No court of any other state would have jurisdiction under the criteria specified in paragraph (1), (2), or (3) of this subsection.
2. Subsection (a) of this Code section is the exclusive jurisdictional basis for making a child custody determination by a court of this state.
3. Physical presence of, or personal jurisdiction over, a party or a child is not necessary or sufficient to make a child custody determination.

(Code 1981, §19-9-61, enacted by Ga. L. 2001, p. 129, § 1.)

- For annual survey of domestic relations law, see 56 Mercer L. Rev. 221 (2004). For annual survey of domestic relations law, see 58 Mercer L. Rev. 133 (2006). For survey article on domestic relations law, see 60 Mercer L. Rev. 121 (2008). For annual survey of domestic relations law, see 67 Mercer L. Rev. 47 (2015). For annual survey on domestic relations, see 70 Mercer L. Rev. 81 (2018). For note on the 2001 amendments to this part, see 18 Ga. St. U.L. Rev. 58 (2001).

JUDICIAL DECISIONS

Editor's notes.

- In light of the similarity of the statutory provisions, annotations decided under former Code Sections 19-9-43 and 19-9-53 are included in the annotations for this Code section.

- Jurisdictional standards of the former Georgia Uniform Child Custody Jurisdiction Act (UCCJA) were set out in former O.C.G.A. § 19-9-53, which in essence established home state jurisdiction, significant connection jurisdiction, emergency jurisdiction, and appropriate forum jurisdiction; when the Supreme Court of the Commonwealth of the Bahamas assumed jurisdiction over a child-custody dispute, it did so in conformance with the jurisdictional standards of the UCCJA. Edwards v. Edwards, 254 Ga. App. 849, 563 S.E.2d 888 (2002);(decided under former Code Section19-9-53).

In a child custody dispute in which a mother and child had lived in Georgia for 22 days before traveling to Turkey, and a Turkish court had awarded the mother custody, a Georgia court erred in asserting jurisdiction because Georgia was not the child's home state, and the Turkey action was commenced first and in compliance with UCCJEA requirements. Gorelik v. Gorelik, 346 Ga. App. 786, 815 S.E.2d 330 (2018), cert. denied, No. S18C1536, 2019 Ga. LEXIS 165 (Ga. 2019).

- O.C.G.A. § 19-7-22(f.1) effected a change in the prior rule of standing under which a putative father could not assert custody claims in a legitimation proceeding but did not create an exception to jurisdictional rules that apply in interstate custody cases under O.C.G.A. § 19-9-61 of the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), O.C.G.A. § 19-9-40 et seq. Slay v. Calhoun, 332 Ga. App. 335, 772 S.E.2d 425 (2015).

- First parent took the parties' child from Georgia to South Carolina and filed a custody action there. As the child had lived with the second parent in Georgia for at least six consecutive months immediately before the second parent commenced a child custody proceeding there, pursuant to O.C.G.A. § 19-9-41, Georgia was the child's "home state" and the Georgia trial court thus had jurisdiction under O.C.G.A. § 19-9-61(a)(1) to grant the second parent temporary custody. Croft v. Croft, 298 Ga. App. 303, 680 S.E.2d 150 (2009).

Trial court erred in dismissing a husband's divorce complaint on the ground that jurisdiction was properly with the Italian court because the trial court had jurisdiction to make the initial custody determination under the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), O.C.G.A. § 19-9-40 et seq., specifically O.C.G.A. § 19-9-61(a) and (b), and no other court did since Georgia was the only state, including Italy, that could qualify as the "home state" of the parties' child pursuant to the UCCJEA, O.C.G.A. § 19-9-41(7), at the time either the Italian custody proceeding or the Georgia proceeding was commenced and at the time the trial court entered the court's initial child custody order; under the UCCJEA, the jurisdictional inquiry entered into by the Italian court was insufficient because the Italian court undertook no analysis of the home state of the child or of any other factors that could be considered a substitute for such but simply found that the prerequisites for jurisdiction over a divorce action were met. Bellew v. Larese, 288 Ga. 495, 706 S.E.2d 78 (2011).

Trial court did not abuse the court's discretion by denying a wife's motion to stay the Georgia divorce proceeding commenced by the husband in lieu of the State of New York proceeding the wife filed because the record showed that the wife and children lived in Georgia with the husband since 2000 and continued to live in Georgia until sometime after the couple filed their respective petitions for divorce; thus, Georgia was the home state of the children for the purposes of the Uniform Child Custody Jurisdiction and Enforcement Act, O.C.G.A. § 19-9-40 et seq., and New York was not. Black v. Black, 292 Ga. 691, 740 S.E.2d 613 (2013).

When a mother moved to Florida with an out-of-wedlock child but permitted the child to stay with the child's father in Georgia for lengthy periods, and all the child's health care occurred in Georgia, the child's "home state" was Georgia for purposes of O.C.G.A. § 19-9-61(a) of the Uniform Child Custody Jurisdiction and Enforcement Act, O.C.G.A. § 19-9-40 et seq. Slay v. Calhoun, 332 Ga. App. 335, 772 S.E.2d 425 (2015).

- Fulton County court did not err in transferring a father's custody modification petition to the Cobb County court under both O.C.G.A. §§ 19-9-61 and19-9-62(a) as Cobb County was the proper forum to hear the modification petition, despite the fact that the divorce and original custody order was heard in Fulton County, given that: (1) the mother and the children later moved to Cobb County; (2) the Cobb County Court entered a custody order; and (3) the Cobb County court thereafter maintained exclusive and continuing jurisdiction over its own child custody determination. Upchurch v. Smith, 281 Ga. 28, 635 S.E.2d 710 (2006).

- There was no merit to a mother's argument that the trial court lacked jurisdiction under the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), O.C.G.A. § 19-9-40 et seq., to modify the court's child custody determination because the determination was made before the UCCJEA was enacted; the UCCJEA in Georgia required only that the initial child custody determination be entered "consistent with" O.C.G.A. § 19-9-61 or O.C.G.A. § 19-9-63. Devito v. Devito, 280 Ga. 367, 628 S.E.2d 108 (2006).

- Trial court erred by granting a parent's complaint for modification of child custody and support and changing custody, which was filed in that parent's county of residence, as that county was not the jurisdiction wherein the issue of custody and support was originally litigated and the opposing parent never waived the challenge to the jurisdiction of the trial court via a pro se letter, which merely acknowledged receipt of the complaint; as a result, the judgment granting the change of custody was reversed and the case was remanded to the trial court with directions for the trial court to transfer the case to the trial court of the proper county. Hatch v. Hatch, 287 Ga. App. 832, 652 S.E.2d 874 (2007).

- Georgia trial court was required to give full faith and credit to decision of the Supreme Court of the Commonwealth of the Bahamas awarding child's custody to the mother, even though it conflicted with the trial court's previous order awarding child's custody to the father. Edwards v. Edwards, 254 Ga. App. 849, 563 S.E.2d 888 (2002);(decided under former Code Section19-9-53).

- In father's action seeking modification of a child custody order, the trial court did not err by concluding that the father's petition under former O.C.G.A. § 19-9-43(a)(1)(B) was timely because O.C.G.A. § 1-3-1(d)(3) extended the six-month period the father had to file the petition from a Saturday to the following Monday. Parke v. Fant, 260 Ga. App. 84, 578 S.E.2d 896 (2003).

- When a wife filed a divorce action in West Virginia before the husband filed an action in Georgia, the West Virginia court's unappealed ruling that a wife was still a resident of Georgia and that court's refusal to exercise jurisdiction over the wife's complaint there were of sufficient effect to authorize the Georgia court to make an initial child custody determination under O.C.G.A. § 19-9-61(a)(3). Implicit in the West Virginia court's finding of lack of jurisdiction was a ruling that Georgia was a more appropriate forum for the action; as West Virginia was the only other court that could have had jurisdiction under § 19-9-61(a)(1) or (2), the Georgia court properly exercised jurisdiction in this case. Cohen v. Cohen, 300 Ga. App. 7, 684 S.E.2d 94 (2009).

- Because the Georgia superior court had exclusive and continuing subject matter jurisdiction over the grandparents' modification of custody action, as there was no evidence to suggest that the initial 2001 custody determination was not made consistent with O.C.G.A. § 19-9-61, even without personal jurisdiction over the child's parent, the custody determination entered by the superior court was upheld on appeal; but, absent personal jurisdiction over the mother to enter a contempt order, such was reversed. Daniels v. Barnes, 289 Ga. App. 897, 658 S.E.2d 472 (2008).

- Superior court erred in granting an aunt and uncle custody of minor children because the court lacked subject matter jurisdiction to consider the petition for custody since a probate court had exclusive jurisdiction to issue and revoke letters of testamentary guardianship, and O.C.G.A. § 29-2-4(b) mandated the issuance of letters of testamentary guardianship to the brother of the children's father without notice and a hearing and without consideration of the children's best interests; the children's physical presence in the state was insufficient to confer subject matter jurisdiction over the petition for custody as the Uniform Child Custody Jurisdiction and Enforcement Act, O.C.G.A. § 19-9-40 et seq., presumed that a "court" acting under its auspices already had jurisdiction to act as authorized by law. Zinkhan v. Bruce, 305 Ga. App. 510, 699 S.E.2d 833 (2010).

Georgia trial court did not have subject matter jurisdiction to modify a Kansas custody determination under the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), O.C.G.A. § 19-9-40 et seq., because, while Georgia was the child's home state under O.C.G.A. § 19-9-61, Georgia failed to satisfy the remaining requirements of O.C.G.A. § 19-9-63 since the Kansas court never made a determination that it no longer had continuing, exclusive jurisdiction over the custody issue or that Georgia provided a more convenient forum than Kansas. Delgado v. Combs, 314 Ga. App. 419, 724 S.E.2d 436 (2012), cert. denied, No. S12C1106, 2012 Ga. LEXIS 602 (Ga. 2012).

Under the Uniform Child Custody Jurisdiction and Enforcement Act, O.C.G.A. § 19-9-40 et seq., the mother's motion to vacate a temporary custody order was improperly denied because the trial court never had subject-matter jurisdiction to make a custody determination as Georgia was not the child's home state because the record did not establish that the mother's time in Texas was a temporary sojourn as the mother maintained employment in Texas, and the child had been born in and previously lived in Texas, had extended family in Texas, attended church, had a regular doctor, and received public benefits in Texas; and, although the mother told the father that the mother intended to return to Georgia, the mother did so out of fear for the mother and the child's safety. Kogel v. Kogel, 337 Ga. App. 137, 786 S.E.2d 518 (2016).

Trial court lacked jurisdiction over a child custody case between parents who had been living in Michigan and were visiting the wife's parents in Georgia under O.C.G.A. § 19-9-61(a)(2); the children had no significant connection with Georgia, even though the mother had grown up in Georgia, and the Michigan court had declined jurisdiction. Bowman v. Bowman, Ga. App. , S.E.2d (Mar. 6, 2018).

Cited in Hall v. Wellborn, 295 Ga. App. 884, 673 S.E.2d 341 (2009); Oglesby v. Deal, 311 Ga. App. 622, 716 S.E.2d 749 (2011); Plummer v. Plummer, 305 Ga. 23, 823 S.E.2d 258 (2019).

RESEARCH REFERENCES

ALR.

- Construction and application of Uniform Child Custody Jurisdiction and Enforcement Act's significant connection jurisdiction provision, 52 A.L.R.6th 433.

Construction and application of Uniform Child Custody Jurisdiction and Enforcement Act's home state jurisdiction provision, 57 A.L.R.6th 163.

Construction and application of Uniform Child Custody Jurisdiction and Enforcement Act's exclusive, continuing jurisdiction provision - no significant connection/substantial evidence, 59 A.L.R.6th 161.

Construction and application of Uniform Child Custody Jurisdiction and Enforcement Act's exclusive, continuing jurisdiction provision - other than no significant connection/substantial evidence, 60 A.L.R.6th 193.