Preview:

Final Copy 290 Ga. 181 S11F0892. HARRIS v. SNELGROVE. HINES, Justice. Lynda Harris, formerly known as Lynda H. Snelgrove ("Harris") was granted an appeal from the superior court's denial of her motion for new trial, as amended, following its entry of a final judgment and decree of divorce and order of custody ("decree"). The decree dissolved her seven-year marriage to Robert Snelgrove ("Snelgrove"), divided the marital property, provided for child support, and awarded custody of the parties' minor child, R. A. S., to the paternal grandparents, intervenors Cary and Kathleen Snelgrove ("grandparents").1 Harris states that she is appealing the decree's awards of custody, child support, and equitable division on the basis that the evidence at trial does not support them. For the reasons that follow, we affirm the judgment of the superior court. Harris and Snelgrove were married on October 10, 2002, and their only child together, a son, R. A. S., was born in 2002. Harris filed the present action for divorce from Snelgrove on April 3, 2009, and the grandparents intervened, seeking custody of their grandson. The superior court appointed a guardian ad litem ("GAL"), and after interviewing the parties and completing an investigation, the GAL recommended to the

Harris's application for discretionary appeal was granted pursuant to this Court's pilot project for divorce cases, now set forth as Supreme Court Rule 34 (4).

1

court that custody of the minor child be given to the grandparents. The superior court issued the decree following a three-day bench trial at which the court heard extensive testimony from all the parties, received the report from the GAL, and considered substantial documentary evidence. The decree, inter alia, awarded sole legal and physical custody of R. A. S. to the grandparents with specified visitation to Harris and to Snelgrove, and directed that Snelgrove pay $287 per month and Harris pay $780 per month to the grandparents for child support; also Harris was ordered to pay Snelgrove $20,000 "as reimbursement . . . for his time, toil and labor in the remodeling and improvements made to the marital residence during the marriage." 1.

Harris first contends that the superior court erred by not allowing her counsel to fully and thoroughly cross-examine the GAL at trial in that counsel was not permitted to question the GAL about "her knowledge of the applicable legal standards" in a custody award to a third party, and then after that line of questioning was barred, counsel was not permitted to further cross-examine the GAL. But, the contention is unavailing. The record reveals that counsel for Harris attempted to question the GAL on the applicable law, and in particular, whether the GAL was familiar with a named appellate case, and the superior court halted that line of questioning, reminding counsel that the court, and not the GAL, was the arbiter of the law in regard to the custody decision.

The role of the GAL at trial is not to expound on matters of law, but rather the GAL is qualified as an expert witness on the best interest of the child or children in question. Uniform Superior Court Rule 24.9 (7); see also Albany Surgical, P.C. v. Dept. of Community Health, 257 Ga. App. 636, 640 (5) (572 SE2d 638) (2002). Accordingly, the GAL may testify about the facts provided by witnesses and sources, other results of the GAL's investigation, and the GAL's ultimate recommendation as to what is in the best interest of the child or children at issue. Uniform Superior Court Rule 24.9 (7). And, that is precisely what the superior court permitted. Contrary to Harris's

contention, the court did not terminate her cross-examination of the GAL. In fact, it expressly told Harris's counsel, "you can go into the factual basis," and counsel continued the cross-examination of the GAL.2 2. Harris next contends that the superior court erred by misapplying the legal standard for awarding custody of a minor child to a third party rather than the biological parent in that the recommendation of the GAL, which the superior court adopted, was based upon educational, social, financial, and moral advantages that the GAL perceived
Although not enumerated as error, in argument, Harris also complains that the superior court allowed the GAL to cross-examine her on the stand and to make argument regarding the GAL's recommendation. However, as acknowledged by Harris, Uniform Superior Court Rule 24.9 (7) provides that the GAL may question witnesses or present argument when there are exceptional circumstances and with the approval of the trial court, which was obviously the situation found in the present case. 2
2

to exist in the grandparents' home. Certainly, as Harris maintains, a parent has a right of custody to her child in preference to a third party unless there is clear and convincing evidence that the parent is unfit. Wade v. Wade, 272 Ga. 526, 527 (1) (531 SE2d 103) (2000). The focus of such a determination of unfitness must be the parent's ability to provide for the child in a manner sufficient to preclude the need for an entity of the government to intervene and separate the child from the parent, and a court is not permitted to terminate a parent's natural right to custody merely because it believes that the child might have better financial, educational or moral advantages elsewhere, that is, the parent's ability to raise her child is not to be compared to the fitness of a third person. Id. OCGA

Download S11F0892. HARRIS f/k/a SNELGROVE v. SNELGROVE.pdf

Georgia Law