IN THE COURT OF APPEALS OF
Rita Hardin, )
) Court of Appeals Case Number
Appellant, )
) A05D0111
)
)
vs )
)
Douglas Andrew
Hardin, )
)
Appellee. )
Archer
D. Smith, III
Amicus
for Appellant
404/881-1200
IN THE COURT OF APPEALS OF
Rita Hardin, )
) Court of Appeals Case Number
Appellant, )
) A05D0111
)
)
vs )
)
Douglas Andrew
Hardin, )
)
Appellee. )
AMICUS CURIAE BRIEF
NOW
COMES, ARCHER D. SMITH, III, as Amcus Curiae, and files this his brief in
support of the Application for discretionary appeal. The interest of the Amicus arises from 38
years of experience practicing family law, litigating numerous disputed custody
cases in which relocation is an issue, including Dellinger v. Dellinger, Ga., Case Number S04F1376, 2004 Ga. LEXIS
1041 (November 23, 2004).
FINDING OF FACT
The facts and proceedings below were properly set forth in Rita Hardin’s Appellate Brief filed by Christopher McFadden. This Amicus would supplement that brief by the following comments from the Guardian Ad Litem which are important as follows:
(a) The Guardian Ad Litem in the case supported the alienation claims of the father by saying as to Appellant by “I think she has done her best to try and remove him from the children’s lives”.
(b) “I think that effectively what would happen if there was a change in custody in favor of the mom is that it would give her the opportunity to almost eradicate the father from the children’s lives like I think she has systematically been trying to do.
(c) What we would be doing if we did that is
essentially rewarding her by giving her what she wants for trying to do that.”
The mother was in
the process of moving to
There
was importantly no finding of fact as to what constituted either alienation of
affection under this situation by her simple relocation for economic reasons to
Also there was no finding by the Court that both the mother and the children had a constitutional right to move as a general rule without punishment. The specific constitutional right was not raised in the case below, but this constitutional right was unconstitutionally applied by the trial Judge and therefore did not need to be raised, but this right needs to be dealt with by this Court.
ENUMERATION OF ERRORS I
Denial
of the children’s constitutional right to move held by mother as joint
custodial primary physical custodian to move for economic purposes to
ENUMERATION OF ERRORS II
The trial Court abused it discretion in not considering the good faith and total unconditional surrender of the mother to the Georgia jurisdiction by her move back to Georgia from Nashville after the trial judge held her in contempt under the notice clause for the move and at the time of her Motion for Reconsideration. This move back made the issue not longer justiciable and the Court retaliated against her for this move by changing custody.
ENUMERATION OF ERRORS III
It was an abuse of discretion for the trial
Court not to have considered the economic and general betterment of the
children by the mother’s economic based move to
ENUMERATION OF ERRORS IV
The Court below further abused its discretion by attempting to do by indirection what he couldn’t do by direction in the Carr case (self-executing provision) when the Scott decision came down. The Court followed his self-executing premise anyway of Carr when the mother moved to Nashville and then moved back to Atlanta with the case still pending which rendered this entire issue moot or non-justiciable.
ENUMERATION OF ERRORS V
The trial Court also erred in failing to make a specific finding that any alienation of affection by the mother’s move with the children or any attempt by the mother to deprive the father completely of the contact with the children was done with intentionality, maliciousness or willfulness by the mother and the trial court failed to set down any standards of review applicable to a relocation hearing.
ARGUMENT I
DENIAL OF THE
CHILDREN’S CONSTITUTIONAL RIGHT TO MOVE HELD BY
The sole reason for the mother’s move from the Atlanta, Georgia metropolitan area from Nashville, Tennessee was to better her job situation from some $27,000.00 a year as a medical tech at Emory to approximately no less than $85,000.00 as a technical sales representative Nashville, Tennessee. Appellant was the primary physical custodian of the children at the time of this move and she has an absolute constitutional right to move under the due process clause of the United States Constitution because this was in her best economic interest. Therefore it became the children’s best economic interest of the children of whom she was primary physical custodian.
When the trial
Court initially forced her to decline a Minnesota job offer and attempted to
enforce the Carr v. Carr provision
which was declared unconstitutional in Scott
v. Scott, the holding of her in contempt under these exigent circumstances
in the trial below for moving to
Further, when the Court made no finding that there was an intentional malicious or willful act of Appellant in making this move to Tennessee, that is not sufficient grounds for the children’s constitutional right to better themselves economically and the mother’s right to better herself economically and the constitutional right to move to be overcome by the natural relocation result of loss of contacts with the non-custodial parent when you do move. This can be rectified by longer periods of time, meeting the parties half-way in Chattanooga, (which was agreed in the case), in matters such as this not to result in such a lack of contact that would be unconstitutionally permitted.
ARGUMENT II
THE TRIAL COURT
ABUSED IT DISCRETION IN NOT CONSIDERING THE GOOD FAITH AND TOTAL UNCONDITIONAL
SURRENDER OF THE MOTHER TO THE
Regarding Argument
II, in the case at bar, after the mother had moved to Nashville, Tennessee with
the children (under exigent circumstances for economic reasons) at the time of
the hearing on the Motion for Reconsideration, she had already moved back with
the children to Atlanta, Georgia.
Instead of applauding her for this, the Court completely ignored it and
made trifling changes in the visitation order and retaliated against her on the
move by changing the custody from her to the non-custodial parent. This obvious retaliation by the Court and the
finding of alienation of affection in effect for loss of contact by her actions
towards the non-custodial parent and the loss of contacts of the children in
Amicus acknowledges that his request for a finding of malicious on alienation of affective on removing the children from the life of the non-moving parent in all of the paragraphs is a case of first impression and there is no law known to Amicus on that subject. This is all the more reason for this Court to take this case and establish standards of proof in this area.
ARGUMENT III
IT WAS AN ABUSE OF DISCRETION FOR THE TRIAL COURT NOT TO HAVE CONSIDERED THE ECONOMIC AND GENERAL BETTERMENT OF THE CHILDREN BY THE MOTHER’S ECONOMIC BASED MOVE TO NASHVILLE AND THE PREFERENCE BY THE TRIAL JUDGE OF THE CHILDREN’S CONTACTS WITH THE SCHOOLS IN GEORGIA, NEIGHBORHOOD, FRIENDS, SCHOOLS AND ENVIRONMENTS OVER FUTURE NEIGHBORHOOD, FRIENDS, AND ENVIRONMENTS IN TENNESSEE.
It was an abuse of
discretion for the trial Court not to have considered the economic and general
betterment of the children by the mother’s economic based move to
Regarding Argument III, The sole reason for the mother’s move from the Atlanta, Georgia metropolitan area from Nashville, Tennessee was to better her job situation from some $27,000.00 a year as a medical tech at Emory to approximately no less than $85,000.00 as a technical sales representative Nashville, Tennessee. Appellant was the primary physical custodian of the children at the time of this move and she has an absolute constitutional right to move under the due process clause of the United States Constitution because this was in her best economic interest. Therefore it became the children’s best economic interest of the children of whom she was primary physical custodian.
ARGUMENT IV
THE
COURT BELOW FURTHER ABUSED ITS DISCRETION BY ATTEMPTING TO DO BY INDIRECTION
WHAT HE COULDN’T DO BY DIRECTION IN THE CARR
CASE (SELF-EXECUTING PROVISION), FOR WHEN THE SCOTT DECISION CAME DOWN.
THE COURT FOLLOWED HIS SELF-EXECUTING PREMISE ANYWAY OF CARR WHEN THE MOTHER MOVED TO
Regarding Argument
IV, in the case at bar, after the mother had moved to Nashville, Tennessee with
the children (under exigent circumstances for economic reasons) at the time of
the hearing on the Motion for Reconsideration, she had already moved back with
the children to Atlanta, Georgia.
Instead of applauding her for this, the Court completely ignored it and
made trifling changes in the visitation order and retaliated against her on the
move by changing the custody from her to the non-custodial parent. This retaliation by the Court and the finding
of alienation of affection in effect for loss of contact by her actions towards
the non-custodial parent and the loss of contacts of the children in
The Court below further abused its discretion by attempting to do by indirection what he couldn’t do by direction in the Carr case (self-executing provision) when the Scott decision came down. The Court followed his self-executing premise anyway of Carr when the mother moved to Nashville and then moved back to Atlanta with the case still pending which rendered this entire issue moot or non-justiciable. The trial Court also erred in failing to establish or find standards with review on contempt at “the Relocation Hearing.”
The trial Court
erred in attempting to do by indirection what he couldn’t do by direction in
this case under the self-executing decision of the Supreme Court in Scott and in Dellinger v. Dellinger, Ga., Case Number S04F1376, 2004 Ga. LEXIS
1041 (November 23, 2004). The Court had
imposed in the case below a Carr v. Carr
provision and the mother initially attempted to move to
ARGUMENT V
THE TRIAL COURT ALSO ERRED IN FAILING TO MAKE A SPECIFIC FINDING THAT ANY ALIENATION OF AFFECTION BY THE MOTHER’S MOVE WITH THE CHILDREN OR ANY ATTEMPT TO DEPRIVE THE FATHER COMPLETELY OF THE CONTACT WITH THE CHILDREN WAS DONE WITH INTENTIONALITY, MALICIOUSNESS, OR WILLFULNESS, BY THE MOTHER AND THE TRIAL COURT FAILED TO SET DOWN STANDARDS OF REVIEW APPLICABLE TO A RELOCATION HEARING.
There was a failure by the trial Court to define that alienation of affection by the mother by making the move has to be done with intentionality, maliciousness, or willfulness and if there was any economic reason whatsoever for the family to move that should take precedent over any loss of contact of the non-custodial parent with the children, which is a natural by-product of a move as opposed to a deliberate by-product of same. As stated earlier this is a matter of appellate first impression.
The Court particularly abused its discretion in setting no criteria for what is involved on a relocation decision under these circumstances and also the Court stating that the contacts with the non-custodial parent and in the children’s best interest was minimized by the move and therefore custody should revert to the non-custodial parent, without setting forth standards of criteria that the custodial parent had supposedly failed to meet. No standard criteria on relocation hearing was set out below and this Appellate Court needs to do so after this discretionary appeal is granted and after normal changes are filed by all parties. Further on any kind of deprivation of contacts with the children by the custodial parent, there needs to be a definition that this should be done with intentionality willfulness, or maliciousness, or scienter, and that there be no fundamental economic reason for the move as there was in this case. This harsh ruling should be overturned for further findings of fact commensurate with standards for the relocation in these type of non-self executing situations as required by Scott as to custody and Dellinger as to visitation.
SUMMARY PRAYER FOR RELIEF
Due to the abuse of discretion in the record below Amicus for Appellate asks:
1. That the case be reversed and remanded below for finding in the case following the Court’s definition as to what is required for a “hearing” relocation under the circumstances. A finding of intentionality or malice should be required for alienation of affection “in the circumstance similar to forum non conveniens” should be. Further a balancing test is required for the relocation to either be overturned or utilized as grounds to shift custody of the children to the non-custodial parent.
2. Requirements as what constitutes a substantial change of adverse situation in this instance should be set by the Court of relocation jurisdiction at the “relocation hearing”. Particular factors required are:
a) The intentionality in regard to any alienation of affection of the non custodial parent nor loss of contact with children of the non-custodial parent;
b) The economic reasons or the intent to deprive the other non-custodial parent of any factor in the life of the children the primary motivation of the spousal move;
c)
Is there an economic betterment for the move for the
benefit of the children that outweighs their current situation and there needs
to be a specific finding as to this fact considering all factors, such as, i. distance of the move; ii. when the move is to take place; iii.
Reasons for the move; iv. The effect
of the move under the current contacts of the children and their overall
circumstances in
This is similar to what the Supreme Court set forth as standard in regard to Prenuptial Agreements as to stating that these agreements will held constitutional in the future if certain factors are met.
3. In a case such as this where there is a sixty day (60) notice provision that in such a proposed move that there be a relocation hearing where the above stated standards would be applied so the moving parent and non-moving parent would know the consequences of the move. So if the Court determined it was in the best interest of the children for them to stay, then the moving party would have the opportunity to either move or not move. If the moving party moved, they would know the consequences of such move and so would the non-moving parent. We are asking that the Court below have such a relocation hearing in this case under Scott v. Scott and that the standards of same be set by this Court of Appeals. Right now the Trial Courts (and for that matter) the litigants are without any guidance whatsoever, from either the Supreme Court or this Court in regard to the standards to be followed at any relocation hearing required by Bodne self executing or not.
4. CRITERIA There has been no finding that the science is of such moment to determine whether relocation is in the best interest of the child. Quoting from the Article of Relocation after Bodne in the Family Law Review by Robert D. Boyd and Catherine M. Knight of Davis, Matthews & Quigley, P.C., the authors stated on page 8 of the Family Law Review under the caption SOCIAL SCIENCE EVIDENCE ON RELOCATION that “It would be much easier to decide whether relocation is in the best interest of a child if any reliable scientific evidence about the effect of the relocation on the child existed. However, there is no definitive study on the issue of relocation…”
5. Further, no standards or criteria as to what constitutes relocation or no relocation in the best interest of the child exists. Particularly since Bodne says relocation alone can now be considered and Scott and Dellinger say it can’t be self executing. Therefore, criteria needs to be developed by this Court to establish appropriate proof of standards and relevant factors at a relocation hearing of which currently there are none.
CONCLUSION
WHEREFORE, Amicus prays that Rita Hardin’s Application for Discretionary Appeal be granted, and after the formal appeal that the trial court’s judgment be reversed and the case remanded due to abuse of discretion, and that this Court formulate standards and criteria for relocation hearings of this nature which have not heretofore have been promulgated by any Appellate Court, so as to guide the trial courts and the litigants in the future.
This 10 day of December, 2004.
Respectfully submitted:
________________________________________
ARCHER D. SMITH, III