Baskin v. Hale
| Citation | 337 Ga.App. 420,787 S.E.2d 785 |
| Decision Date | 15 June 2016 |
| Docket Number | A15A2232,A16A0654 |
| Parties | Baskin v. Hale Baskin v. Hale |
| Court | United States Court of Appeals (Georgia) |
337 Ga.App. 420
787 S.E.2d 785
Baskin
v.
Hale
Baskin
v.
Hale
A15A2232
A16A0654
Court of Appeals of Georgia.
June 15, 2016
Shannon Denise Briley, Jonesboro, for Appellant.
Brandon Kenneth Dial, for Appellee.
Doyle, Chief Judge.
Shannon Baskin and Gary Hale, who never married, have two biological sons. Baskin also has a daughter from a preceding relationship. In Case No. A15A2232, Baskin appeals the superior court's final judgment awarding Hale primary physical custody of all three children. In Case No. A16A0654, Baskin appeals the superior court's order granting a permanent injunction prohibiting the parties, their attorneys, and court personnel from discussing the custody case with the media and/or from placing or causing the placement of any information about the case on social media. For the reasons that follow, in Case No. A15A2232, we affirm in part and reverse in part. In Case No. A16A0654, we vacate the injunction.
In 2003, the parties began a romantic relationship; Baskin's daughter, A.W., was ten months old, and the parties shared parenting duties.1 In July 2005, the parties' first son, G.H., was born, and they moved in together. The parties ended their relationship in 2006, and in 2007, Hale sought to legitimate their son. On March 30, 2007, the parties entered into a consent order, which legitimated their son, provided the parties with joint legal custody of both children, gave Baskin primary physical custody of her daughter and Hale primary physical custody of their son, and gave Hale visitation with both children four nights a week and Baskin visitation the other three nights. The consent order specifically acknowledged that Hale was not A.W.'s biological father, but stated that Hale “raised [her] as his own” while he lived with Baskin and that A.W. had lived with one or the other of the parties since their separation. The order was signed by both parties and the superior court.
On March 14, 2014, Baskin filed a petition for modification of custody, seeking to terminate Hale's joint custodial rights and visitation rights as to her daughter and modify his visitation rights as to their oldest son.2 Hale filed an answer and a counterclaim for contempt, legitimation of their second son, W.H., and a custodial determination as to W.H.3 On May 12, 2014, the superior court appointed a guardian ad litem (“GAL”). On July 30, 2014, following a status hearing, at which the GAL testified, the court entered a
temporary order: granting the parties joint legal custody of their second son, with Hale having primary physical custody; maintaining the parties' joint legal custody of A.W. and G.H., granting Baskin primary physical custody of her daughter and Hale primary physical custody of their oldest son; and giving the parties equal visitation with the children (every other week, from Wednesday to Wednesday).
On April 27, 2015, following a final hearing, the superior court entered a final custody judgment, awarding the parties joint legal custody of all three children, with Hale having primary physical custody, and granting Baskin visitation with them every other weekend, one afternoon each week, on alternating holidays, and every other week during the summer. The court concluded in the order, that, among other things, Baskin “interfered with Hale's rights to [G.H.] and [A.W.]”; Baskin “engaged in a pattern of parental alienation” and “defied orders of
[the] court”; “Baskin's household is chaotic and unstable[, and s]he cannot control [A.W.]”; law enforcement had been called to the Baskin residence at least six times during the pendency of the litigation; “[t]he children are unsafe in Baskin's primary care”; “Baskin is controlling, manipulative, recalcitrant[,] vindictive[,] and not ... truthful”; and “Hale appears to maintain a stable household [and to be] capable of providing ... [the] structure and stability” that “A.W. desperately needs.” Applying the factors set forth in OCGA § 19–9–3 (a) (3), the court concluded that “the preponderance of the evidence demonstrates that it is in the children's best interest for Hale to have primary physical custody.”4 Further, while acknowledging that Hale was not the biological or legal father of A.W., the superior court found that Hale “acquired parental status through the 2007 [c]onsent [o]rder,”5 “Baskin is unfit for physical custody of [A.W.],”6 and “by clear and convincing evidence, ... if [A.W.] remains in the primary physical custody of Baskin, [A.W.] will suffer physical harm and significant long-term emotional harm.”7
On April 28, 2015, the superior court entered an order granting an injunction until their youngest son reaches 18 years of age.8 The court noted therein that it had previously entered a “gag order” in the case after Baskin made “derogatory and disparaging comments” on social media about Hale, the court, and the proceedings, which
comments the court concluded were “detrimental to the parties' minor children [ ] and intimidating to the parties.” The court also concluded that, in an effort to intimidate the court and “invite the attention of the media to this case,” Baskin had filed a motion to recuse,9 as well as a complaint in federal court to enjoin enforcement of the gag order. Thus, the court ordered, in relevant part:
[Baskin, Hale], their attorneys, and the [GAL] are hereby restrained and enjoined from putting, placing[,] or causing to be placed any information concerning this custody case upon or in any social media, website, or other public medium. The parties are restrained and enjoined from, directly or indirectly, putting, placing, or causing to be placed any disparaging or derogatory comments about the opposite party upon or in any social media, website, or other public medium. The restrictions of this paragraph include restricting the persons named or referred to from speaking or corresponding with any print, radio[,] or television media about this case. This restriction shall extend until [W.H.] attains the age of 18 years. [The parties] and their attorneys are hereby restrained and enjoined from putting, placing[,] or causing to be placed any allegation that any transcript in this case has been altered upon or in any social media, website, or other public medium, or speaking or corresponding with any print, radio[,] or television media about any such allegation. This issue was adequately addressed in this court's Final Order Denying Production of Audio Recordings, entered April 23, 2015. Any allegation that this court's reporter's transcript of the July 11, 2014 [hearing] is flawed is frivolous, and without any foundation in law or in fact. This matter is res judicata with respect to the parties.
These appeals followed.
Case No. A15A2232
Baskin appeals the final judgment awarding primary physical custody of all three children to Hale.10
1. Custody of A.W. Baskin contends that the trial court erred by granting custody of her daughter, A.W., to Hale. We agree.
“Only the mother of a child born out of wedlock is entitled to custody of the child, unless the father legitimates the child as provided in Code Section 19–7–21.1 or 19–7–22. Otherwise, the mother may exercise all parental power over the child.”11 Here, A.W.'s biological father has made no efforts to legitimate A.W., and Hale has made no efforts to terminate the biological father's parental rights or to adopt A.W. Nonetheless, Hale argues that Baskin relinquished to him her parental power over A.W. by giving him joint custody with reasonable visitation rights to her daughter in the 2007 consent order. This argument is without merit.
Parental power over a child may be lost pursuant to OCGA § 19–7–1 (b) (1) by “[v]oluntary contract releasing the right to a third person....”12 As the trial court acknowledged, all of the cases citing that Code section contemplate a parent's complete relinquishment of their entire parental rights.13 But the trial court interpreted the statute to authorize a permanent surrender of a partial portion of parental power. Pretermitting, however, whether OCGA § 19–7–1 (b) (1) allows a permanent partial surrender of parental power, Baskin did not permanently surrender her parental power or custody rights to A.W. in the 2007 consent order.
To support a finding that a party relinquished her parental rights pursuant a voluntary contract under OCGA § 19–7–1 (b) (1), “the evidence must establish clear, definite, and unambiguous terms of a such a contract.”14 Here, there is no indication that when entering the 2007 consent order, the superior court decided that Hale would have a permanent ongoing custodial right in A.W. or that such a custodial arrangement was in the child's best interest. By entering into the consent order, Baskin simply agreed that Hale was entitled to joint custody of A.W., with liberal visitation, at that time . She did not
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