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About Court Discretion in Georgia

by merlin on October 21st, 2012
  • Sumo

One of the “projects” that I am researching at this time is the discretion of Courts in different legal areas, especially matters involving civil relief.  The reason for this is to analyze comparative situations involving the limit and breadth of Court power after finding conditions precedent for relief itself.

To this end, the following pertains first to child custody modification by Courts, and subsequently to probation terms imposed by Courts.  What this shows is what I was already aware of – namely that Court power is more limited by external conditions in their civil determinations, and have far more plenary power in criminal determinations.

Discretion of Court versus facts and evidence shown:

Helm v. Graham, 249 Ga.App. 126, (Ga. Ct. App. 2001)

  • What the court must affirmatively find to warrant change in child custody is either that the original custodian is no longer able or suited to retain custody or that conditions surrounding the child have so changed that modification of the original judgment would have the effect of promoting his welfare (p. 128).
  • Although trial courts have wide discretion in change of child custody proceedings, there are limits to that discretion (ps. 128-129).

Daniel v. Daniel, 250 Ga.App. 482 (Ga. Ct. App. 2001)

  • If reasonable evidence exists in the record to support trial court’s decision to change custody or visitation rights, then the decision of that court will stand and will not be overturned absent abuse of discretion; though trial judge is given a discretion, he is restricted to the evidence and is unauthorized to change the custody where there is no evidence to show new and material conditions that affect the welfare of the child (p. 484).
  • In a change of custody suit, the “best interest of the child” standard should only be utilized in deciding the case after a change in condition materially affecting the child has been established. O.C.G.A. §§ 19-9-1(a)(1), 19-9-3(a) (ps. 484-485).

Mahan v. McRae, 241 Ga.App. 109 (Ga. Ct. App. 1999)

  • An award of custody vests in that parent the prima facie right of continued custody; this judgment, however, is not conclusive, except as to the status existing at the time of its rendition, and is subject to a change or modification on a showing of a change in circumstances or conditions since the rendition of the decree (p. 110).

Pless v. The State, 286 Ga.App. 235 (Ga. Ct. App. 2007)

  • Trial court had inherent authority to require that defendant reimburse county for court-appointed attorney fees, as part of sentencing for failure to keep animal under restraint and allowing animal to become public nuisance, despite repeal of statute authorizing reimbursement (pg. 235). – In a criminal matter, the trial Court has plenary authority to act, legislative will notwithstanding.  In a civil matter…?

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