Long v. Long
| Citation | 303 Ga.App. 215,692 S.E.2d 811 |
| Decision Date | 29 March 2010 |
| Docket Number | No. A09A1692.,A09A1692. |
| Parties | LONGv.LONG et al. |
| Court | United States Court of Appeals (Georgia) |
303 Ga.App. 215
692 S.E.2d 811
LONG
v.
LONG et al.
No. A09A1692.
Court of Appeals of Georgia.
March 29, 2010.
Ashley Wright, Dist. Atty., Kristina G. Connell, Geoffrey L. Fogus, Charles R. Sheppard, Asst. Dist. Attys., Thurbert E. Baker, Atty. Gen., Shalen S. Nelson, Senior Asst. Atty. Gen., Elizabeth M. Williamson, Asst. Atty. Gen., Glover & Blount, Gary A. Glover, Augusta, Jerry M. Daniel, Waynesboro, Edward J. Flythe, Augusta, for appellees.
DOYLE, Judge.
Christine Denise Long appeals from the trial court's order in her pending divorce action. The Burke County Superior Court enjoined the Department of Human Resources and the Burke County Department of Family and Children Services (the “Department”), the temporary custodian of Long's minor children, from allowing the children to live with Long or to visit with her unsupervised and stayed the Burke County Juvenile Court from taking any action which would result in a contrary decision. We reverse because the juvenile court had prior jurisdiction over the temporary custody of Long's children in light of the ongoing deprivation action. Long also appeals the trial court's disposition of a discovery matter, which we affirm.
The record shows that Long's ten minor children were taken into the protective custody of the Department on July 31, 2008. A deprivation action with respect to the children was subsequently filed in the juvenile court.
In December 2008, the grand jury returned an indictment charging Long and her husband with ten counts of cruelty to children in the second degree and five counts of failure to educate. On February 16, 2009, Long filed a complaint for divorce in the superior court. On the afternoon of March 23, 2009, the State of Georgia, acting through
On March 24, 2009, the trial court held an emergency hearing to consider the amicus brief. The district attorney represented to the court that its office had received information that the Department intended to return four of Long's children to her custody, and that the district attorney objected to the return of the children to Long, “a defendant who is under indictment.” 1 Long, through her attorney in the deprivation proceeding, represented that there was no proposal before the juvenile court for transfer of legal custody to Long, but only “physical placement with legal custody staying with [the Department].” Long's attorney also confirmed that there had been a finding of deprivation.
The Department's attorney represented that legal custody of the children was currently in the Department and that a hearing was scheduled in juvenile court that afternoon to consider the mother's request for physical placement of the four older children. The Department's attorney indicated that evidence would be presented in that proceeding, but he thought that the Department would have no objection to the four older children being placed with Long “for a period of time ... to see how it goes.” The trial court subsequently heard the testimony of the children's guardian ad litem in the deprivation action, who recommended against returning the children to Long during the pendency of the criminal charges.
In closing argument, the assistant district attorney represented that her office had brought its concerns to the trial court because “[t]he State doesn't feel like it has any other choice.” The assistant district attorney admitted, however, that her office could pursue the protection of its interests within the context of the criminal proceedings, “which we are going to do.” She also acknowledged that her office had considered going before the juvenile court, but she “fe[lt] like” a decision had been made in that court. Because the judge handling the criminal case was apparently unavailable, and because “there was an immediate need to do something because of [the pending juvenile court hearing],” she asked the trial court to act in the divorce proceeding.
The trial court ruled that it would restrain the Department from granting any kind of unsupervised custodial arrangement or placement with Long. The same day, the trial court entered a handwritten order: (i) adding the district attorney and the Department as parties to the divorce action, (ii) appointing the district attorney as counsel for Long's minor children, (iii) enjoining the Department from “placing any of the parties' children to live with [Long] or visit with her unsupervised,” (iv) staying any action of the juvenile court that would result in a decision contrary to the trial court's order, and (v) ordering that the existing foster parents continue in such capacity and be compensated by the Department at its customary rates. In separate orders, the trial court also appointed two guardians ad litem to represent the children's best interests in the divorce action and to determine the manner and frequency of supervised visitation between Long and her children.2
1. The district attorney has moved to dismiss this appeal on the ground that Long had no right of direct appeal. We disagree.
In explaining why it acted, the trial court expressed its disagreement with the Department's recommendation to reunite Long with her children while the criminal charges were
2. Long argues that the trial court erred when it enjoined the Department's actions by prohibiting it from placing the children with Long or allowing them to visit with her unsupervised and by staying any decision of the juvenile court that would be contrary to its order. We agree.
The superior court has broad powers to determine matters of custody during the pendency of a divorce action. The court may “hear and determine who shall be entitled to the care and custody of the children until the final judgment in the case.” 4
The authority of the presiding judge, frequently referred to as plenary, to control the custody of minor children ... pending a divorce suit between their parents is very broad, so that in the exercise of sound discretion the judge may from time to time, until the final decree is entered, modify his orders in this respect and transfer the possession of the children from the persons to whom custody was originally granted and commit them into the care of other and different parties.5
Although a deprivation action was pending before the juvenile court when the trial court acted in this case, and “[t]he juvenile courts of this state have exclusive original jurisdiction with regard to any child who is alleged to be deprived,” 6 this did not divest the superior court of its exclusive jurisdiction over the divorce action 7 or, by extension, its statutory authority to determine temporary custody until final judgment. By analogy, we have previously found that the superior court retained its jurisdiction over a child's adoption notwithstanding the ongoing deprivation proceeding with respect to the child in the juvenile court.8
The trial court had jurisdiction over the temporary custody of Long's children. However, the juvenile court in the contemporaneous deprivation proceeding “had the authority to order disposition best suited to...
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