Georgia courts hold that custody is a poor fit for summary judgment, because a custody decision turns on the trial judge’s discretion rather than on facts a court can settle on paper.
Why Custody Is Different
In Miller v. Rieser, 213 Ga. App. 683 (1994), a grandmother and a guardian ad litem challenged the parents’ fitness, and the trial court granted the parents summary judgment on that question. The Court of Appeals reversed, explaining that “because the question of custody is based in part on discretion, summary judgment, which precludes the intangible side of live testimony, is ill-suited for the resolution except in ‘clear, plain, and palpable cases.’”
Fitness, the court explained, is not “like finding the light was red or green, an objective fact,” but “requires the application of judgment, within certain defined boundaries.” That kind of judgment is made by watching witnesses, which is exactly what summary judgment cuts out.
The Rule Applies to Modifications Too
Allen v. McGuire, 339 Ga. App. 219 (2016), carried the same rule into a custody modification. The Court of Appeals affirmed the denial of partial summary judgment, holding that “as the determination of custody is based in part on the trial court’s discretion, custody actions are generally ill-suited for summary adjudication.” The mother’s affidavit describing changes in the households, the child’s academic progress, and the father’s failure to cooperate over medical care was enough to require a hearing.
What This Means for You
Even though summary judgment exists in family law cases, do not expect a Georgia judge to hand you custody on affidavits alone. Plan on putting your evidence up in person.
Contact Us
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!