A bill limiting what parts of child custody cases are eligible for direct appeal has passed the General Assembly and been sent to the governor.
Senate Bill 204 is the product of the State Bar of Georgia’s Appellate Practice Section, which sought to fix what it believed was an unintended consequence of changes the state Legislature made to the appeals code six years ago.
There was not a direct right of appeal in child custody cases prior to 2007. That year, lawmakers amended O.C.G.A.§ 5-6-35 by removing all references to child custody cases and inserted subsection 11 into O.C.G.A. 5-6-34(a). It provides for direct appeal of "all judgments or orders in child custody cases including, but not limited to, awarding or refusing to change child custody or holding or declining to hold persons in contempt of such child custody judgment or orders."
"The problem was the inclusion of ‘including, but not limited to.’ It sort of opened up everything," said Jeffrey Swart, a partner at Alston & Bird and head of the Appellate Practice Section’s legislative committee.
The changes allow parties in hotly contested custody cases to stall by appealing nearly every order, Swart said.
"In general, an appeal tends to put a case on hold," he said. "And so, whoever is satisfied with the status quo, if they have the ability to appeal every order as entered and get a delay in the ultimate resolution of the case, that could be to their advantage.
"We don’t believe that what was intended," he added. Swart said the section was not able to determine how or why the phrase "included, but not limited to" was inserted in the statute.
"It was our feeling — although we were not able to confirm it because the legislative history is hard to trace — is that it was a drafting error," Swart said. "No other state in the union allows appeal of all orders in child custody cases. It was our sense that the intention here was to have these orders appealable when they actually affected custody of a child or contempt related to orders affecting the location of a child."
Seth Harp, a Republican lawyer from Columbus, who is no longer in the General Assembly, sponsored the bill in the Senate. In an interview Wednesday, Harp said he initially wanted to give parties in all domestic relations cases the ability to directly appeal trial judges’ orders. However, he agreed to narrow the provision to child custody cases after consulting with appellate judges who told him the courts would be overwhelmed with appeals.
"It was very easy, at the time, for the court to exercise extreme discretion [in custody cases]," Harp said. A custody decision "can be such an onerous thing and presents such a potential for battle that it can need a second look," he added.
Neither Harp, nor House co-sponsor Rep. Edward Lindsey, R-Atlanta, of Goodman McGuffey Lindsey & Johnson, could recall how the phrase "including, but not limited to" ended up in the statute. Both said they support the current legislation to tighten the provision. The 2007 amendments have prompted the state Supreme Court to weigh in on whether orders in other kinds of cases that involve child custody, namely divorce, also are directly appealable. In 2010, the high court found in Todd v. Todd, 287 Ga. 250, that direct appeal is not authorized for final decrees of divorce in which child custody is an issue; those cases required an application for discretionary appeal.
The Appellate Practice Section began discussing corrective legislation a few months prior to the start of the General Assembly’s current session, which began in January, and was bolstered in the fall by a Court of Appeals decision in a child support case.
In a footnote within the appellate court’s October 2012 opinion in Collins v. Davis, 318 Ga. App. 265, Judge William M. Ray II hinted there might be a legislative fix.
"This court sympathizes with those who believe that the General Assembly really intended that only the custody or visitation terms in a child custody case should be directly appealable," wrote Ray, a Republican state senator from 1996 to 2002. "However, given the wording used by the General Assembly in enacting its 2007 amendments to O.C.G.A. § 5-6-34, it is incumbent upon the Legislature to further refine this language if this code section opened up too broadly those orders and judgments which could be directly appealable."
Court of Appeals Judge Christopher McFadden sent an email to the section in November saying an informal survey other judges on the appellate bench found agreement that the current law is too broad.
"Not all responded. A majority agree, generally speaking, that it is a bad idea to allow interlocutory appeals of right from all orders in custody cases and that the statute should be changed," McFadden wrote. "None of my colleagues have expressed a contrary view."
Swart said he was unaware of any opposition to the bill, which passed unanimously. The bar secured Senator Bill Cowsert, R-Athens, who is a lawyer, as the bill’s primary sponsor.