A Georgia judge can throw a divorce, custody, or modification case out before any evidence is heard, but the standard for doing so is a demanding one.
What the Standard Is
The Civil Practice Act applies to actions for divorce, alimony, and custody. OCGA 19-5-8. Under OCGA 9-11-12(b)(6), a party may move to dismiss for “[f]ailure to state a claim upon which relief can be granted.”
In Mooney v. Mooney, 235 Ga. App. 117 (1998), the Court of Appeals stated the test. A motion to dismiss “should not be sustained unless (1) the allegations of the complaint disclose with certainty that the claimant would not be entitled to relief under any state of provable facts asserted in support thereof, and (2) the movant establishes that the claimant could not possibly introduce evidence within the framework of the complaint sufficient to warrant a grant of the relief sought.” Moreover, “all pleadings are to be construed most favorably to the party who filed them, and all doubts regarding such pleadings must be resolved in the filing party’s favor.”
So the question is not whether you are likely to win, but whether there is any version of the facts, consistent with what you filed, under which you could.
You Do Not Have to Plead Everything
In Scott v. Scott, 311 Ga. App. 726 (2011), grandparents petitioned for custody of their granddaughters after their son was shot and killed by the children’s mother. The trial court dismissed the petition because it did not allege that leaving the children with their mother would harm them. The Court of Appeals reversed. The petition gave “fair notice” that the grandparents sought custody based on the mother’s alleged murder of the father, and a complaint does not have to set out every element of a claim to survive.
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This post is a quick overview of the law and is not intended as legal advice. Please feel free to contact our office for a consultation if you have questions about this or any other legal aspects regarding your case!