W.W.W., In Interest of

• Decision Date: 30 June 1994
• Docket Number: No. A94A0656,A94A0656
• Citation: 445 S.E.2d 832,213 Ga.App. 732
• Parties: In the Interest of W.W.W. et al., children.
• Court: Georgia Court of Appeals

Page 832

445 S.E.2d 832

213 Ga.App. 732

In the Interest of W.W.W. et al., children.

No. A94A0656.

Court of Appeals of Georgia.

June 30, 1994.

L. Lynn Hanna, MaryTheresa Clark, Marietta, for appellant.

Michael J. Bowers, Atty. Gen., Teresa E. Lazzaroni, Asst. Dist. Atty., Jim W. Blount, Rubin, Winter & Rapoport, Joseph M. Winter, Atlanta, for appellee.

BIRDSONG, Presiding Judge.

We granted a discretionary appeal of the juvenile court's award of two of the parties' children to appellee father.

The parties divorced in 1985. Appellant mother retained custody of their three children. In 1988, appellee filed a petition for change of custody and the superior court held "the clear and convincing evidence fails to show child abuse by [the mother] or any material change of conditions caused by her.... The clear and convincing evidence [shows] that the ... father of the children has abused [them] by discriminatory treatment and [rejection of his youngest child which] commenced with denial of paternity [and] has affected the attitude and behavior of his extended family including his mother and his present wife.... The abuse will be increasingly damaging to the children.... [The father] shall have visitation privileges ... only on the condition that he treat all of the children on an accepting basis."

In 1992 the mother sued appellee for modification of child support. While that suit was pending appellee filed this deprived child petition in juvenile court, alleging physical abuse of the elder son. Appellant filed a counter-petition alleging deprivation of all children. The juvenile court found no physical abuse by the mother but found all children were emotionally abused by both parents. On a trial basis it gave custody of the two older children to appellee and ordered the youngest child to have no contact with him until the child completed therapy. After several months with the older children in the father's custody, the juvenile court re-heard the matter and found: "It was shown by clear and convincing evidence that the ... children continue in a state of deprivation ... [as they] are without proper parental care or control necessary for their mental or emotional health.... There has been minimal improvement in the mental and emotional health of the [two older] children." The court ordered that those children remain in the father's custody while the youngest boy remains with appellant. Held:

1. The judgment is void because the juvenile court did not have jurisdiction of the subject matter. The father alleged deprivation by the mother after she sued for change in support. The entire record, including the court's disposition, shows that this is a custody dispute.

Where custody is the subject of controversy, the juvenile court has concurrent jurisdiction to hear and determine custody issues only when the case is transferred by the superior court. OCGA § 15-11-5(c); Lockhart v. Stancil, 258 Ga. 634, 635 fn. 1, 373 S.E.2d 355; Moss v. Moss, 233 Ga. 688, 690, 212 S.E.2d 853; In re J.R.T., 233 Ga. 204, 210 S.E.2d 684; Colton v. Martins, 230 Ga. 482, 197 S.E.2d 729; see In the Interest of C.F., 199 Ga.App. 858, 406 S.E.2d 279; Neal v. Washington, 158 Ga.App. 39, 279 S.E.2d 294; see Conroy v. Jones, 238 Ga. 321, 232 S.E.2d 917; In the Interest of M.M.A., 174 Ga.App. 898, 332 S.E.2d 39.

Appellee contends that because he filed a deprivation petition, the juvenile court had exclusive jurisdiction regardless whether a parental custody dispute is involved, for this action determines whether the child is deprived "and is not an action brought to decide custody matters." In the Interest of A.L.L., 211 Ga.App. 767, 440 S.E.2d 517. However, this statement, quoted from Anderson v. Sanford, 198 Ga.App. 410, 411, 401 S.E.2d 604, merely held that a deprivation proceeding is not a "custody action" within the meaning of OCGA § 19-7-3(c). In the Interest of A.L.L. does not hold that the juvenile court has exclusive jurisdiction of cases which are not valid deprivation cases but are actually custody disputes. Pleadings are only a means to reach the merits of a case; we construe pleadings to do substantial justice and in determining the nature of a proceeding, its substance, not its name, controls. Franklyn Gesner, etc., v. Ketcham, 252 Ga. 537, 539, 314 S.E.2d 903.

In Lewis v. Winzenreid, 263 Ga. 459, 435 S.E.2d 602 the mother filed a deprivation petition rather than return the child to the father's legal custody. The superior court issued a writ of habeas corpus. The Supreme Court affirmed the writ and held the juvenile court had no jurisdiction. The fact that the dispute in Lewis was between resident and non-resident parents does not change the basis of that decision. The Supreme Court held, "custody disputes between parents are not within the exclusive original jurisdiction of the juvenile courts of this state"; the juvenile court has exclusive jurisdiction to entertain petitions concerning children alleged to be deprived, but not where the record shows the petition was not in the nature of a valid deprivation petition; juvenile courts should not entertain deprivation proceedings brought by one parent to obtain custody from the other parent for there is a great likelihood in such cases that allegations of deprivation will be motivated by a desire to avoid the more stringent standard of proof applicable in a custody modification action in superior court, where the noncustodial parent must prove a material change in circumstances substantially affecting the interest and welfare of the child. Id. at 462-463, 435 S.E.2d 602.

The fact that Lewis quoted so liberally and interchangeably from cases with very different facts merely proves the common premise. Lewis concluded the juvenile court "should not entertain " a deprivation petition filed by one parent against another. Id. at 462, 435 S.E.2d 602. Lewis means that when the dispute is between parents, it is prima facie a custody matter. The superior court may determine the proceeding is a "valid deprivation petition" (Lewis, supra), and it can transfer the case to juvenile court as any court would do on finding it does not have jurisdiction.

Appellee filed this deprivation petition only after the custodial parent filed a petition for support modification. He alleged physical abuse against one child only (see In re R.R.M.R., 169 Ga.App. 373, 312 S.E.2d 832), a charge for which the juvenile court found no substantiation. Appellee could not, merely by filing a "deprived child" petition, thwart the prior custody order of superior court and remove its exclusive jurisdiction of custody issues. The bare allegation of physical abuse did not make this a valid...