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Motion for Summary Judgment in a Child Custody Case (Heavily Redacted)

by merlin on January 6th, 2015
  • Sumo

The following represents a Motion for Summary Judgment in a Child Custody case.  I will post legal precedent for the possibility of such a motion to this site after I have it better assembled (there was some question in Court as to the possibility of such an action in this type of case, but research has shown that there is precedent).  The motion was filed, and my rules dictate that it be posted, but I am curious as to your thoughts on this issue.



            COMES NOW Plaintiff XXXXX XXXXX, by and through undersigned counsel, and makes and files this, his Motion for Summary Judgment, circumventing the thirty (30) days’ advance notice of such a matter ordinarily required by the Georgia Code, pursuant to the principles announced in Brooks et al. v.  Multibank 2009-1 RES-ADC Venture, LLC, 317 Ga.App. 264, 730 S.E.2d 509 (Ga. Ct. App. 2012)(Court converted to and granted summary judgment to bank upon motion for judgment on the pleadings without giving guarantor 30 days to respond, because of admissions made in Discovery showing there was no genuine issue remaining and guarantor could not cure his admissions), and respectfully shows the Court that there remains no genuine issue as to any material fact and XXXXX XXXXX is entitled to a judgment as a matter of law.  In support thereof, Movant states the following:


            This motion can be decided by the Court before trial on the merits.  A pretrial conference in this case is being heard on XXXXX XX, 20XX, at which time the Guardian Ad Litem intends to present his formal recommendations to the Court.  However, trial in this matter is not scheduled until XXXXX.  The Guardian Ad Litem has already released a preliminary intended report, but that evaluation was made prior to the Order of the Court on Sufficiency of Defendant’s Answers to Plaintiff’s First Continuing Requests for Admission and Sanctions (hereinafter referred to simply as “the Order”), which legal admissions materially and substantially affect the best interests of the child and are necessarily persuasive for purposes of a final, binding judgment on the merits in this matter.  Section 19-9-3(a)(2) of the Official Code of Georgia sets out the conditions for this determination plainly, and the consideration of the judge is to include “all the circumstances of the case…in determining to whom custody of the child should be awarded.”  The matters conclusively established by the Order affect these considerations, change all of the circumstances of the case, and reflect directly on the mental and physical health of the party in whom custody is currently vested.

Uniform Superior Court Rule 6.6 requires that a motion for Summary Judgment “shall be filed sufficiently early so as not to delay the trial.”  There was insufficient evidence on the record prior to the Order to make a persuasive motion for summary judgment, but this motion follows the revelations of the Order closely in time, and this will not act to delay the trial at all.  The matter can be decided fully by the Court without unnecessarily confounding the Court’s trial schedule.


            This motion can be decided by the Court without need for a hearing.  According to Uniform Superior Court Rule 6.3, “all motions in civil actions, including those for summary judgment, shall be decided by the court without oral hearing.”  The validity of this rule was confirmed by Richmond Leasing Co. v. First Union Bank, 188 Ga. App. 843, 374 S.E.2d 746 (Ga. Ct. App. 1988), echoing Dallas Blue Haven Pools v. Taslimi, 180 Ga. App. 734, 350 S.E.2d 265 (Ct. App. 1986), when it said that “under the Uniform Rules (Rule 6.3), unless otherwise ordered by the court, or requested by one of the parties, all motions in a civil action, including a motion for summary judgment, will be decided without oral argument” (188 Ga.App. at 847)(emphasis supplied).


            Plaintiff is entitled to judgment as a matter of law.  Section 9-11-56(c) of the Official Code of Georgia states that “[t]he judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law”.

This Code Section does not require that any affidavits be submitted, and the best interests of the child have been shown by the admissions on file to be contravened by the Defendant’s actions in this case.  Specifically, the admissions on file are as follows:

  • Defendant has ADMITTED that she has a presently pending indictment against her for possession of a controlled substance in XXXXX County, Georgia, as well as a current charge against her for reckless conduct in XXXXX County, Georgia. Defendant further ADMITTED that she lied to the Court under oath when asked about existing legal proceedings against her.
  • Defendant was also found in a tangential hearing to have lied to the courts in XXXXX County following XXXXX arising immediately from that same hearing.Though the allegations themselves are denied, Defendant ADMITTED that she has an existing police report made against her in XXXXX County for child endangerment following an alleged act of sexual congress while XXXXX XXXXX XXXXX was in the room and on the bed with her.

A statement made by her roommate, XXXXX XXXXX, recounting this incident, is attached hereto and incorporated herein as Exhibit “A”.

  • Defendant ADMITTED that she had two children prior to the birth of XXXXX XXXXX XXXXX, that she does not believe her parental rights were terminated or abrogated in any way by the Department of Family and Children Services but that said children were placed in the custody and control of relatives prior to the removal of those rights; that one child had a torn ear and a broken leg, and that neither child was old enough to attend school. She further qualified the responses by stating that the persons responsible were her romantic partners on each occasion.

Even if this does not reflect directly on her care for the best interests of any of her past natural children, or her care for her current child, she has shown remarkable irresponsibility in the selection of her romantic partners, endangering the health and safety of her children before.  She has a demonstrated track record of being unable to act with the best interests of her child at heart.

  • Defendant ADMITTED that she has not maintained her most recent employment for more than six (6) months before the date of the requests for admission served on her, and further qualified her answer by stating that she is currently unemployed.

In fact, the source of the funds which she has been Ordered by the Court to pay to counsel for Plaintiff following her blatant untruths to the Court previously is, apparently, TANF (Temporary Assistance for Needy Families) funds, as she stated unapologetically in open Court.  She uses the child as a source of income, rather than seek employment herself.

  • Defendant ADMITTED that the prescription pill bottle containing Xanax and Loritab located by agents of the XXXXX Drug Task Force during a search of the residence located at XXXXX XXXXX Street, in XXXXX, Georgia, on XXXXX XX, 20XX, was labelled with her name and was her property.

The source of one of the two criminal charges against Plaintiff arises entirely from a bottle labeled with the name of Defendant.  The other charge arises from living in a home that was previously rented in Defendant’s name and which she was an integral part of.

  • Defendant ADMITTED that she previously executed a document purporting to create a guardianship over XXXXX XXXXX XXXXX to Plaintiff in the presence of witnesses and a notary public.

Defendant qualified this statement in Court by stating that she subsequently learned that the document was not properly executed and did not, in fact, create a legal guardianship.  However, it is important to note that she had no such knowledge at the time of execution, and did so fully and knowingly, comfortable in the knowledge that Plaintiff was an appropriate caretaker for the child.  This speaks directly to the best interests of the child.

  • Defendant ADMITTED that on or about XXXXX XX, 20XX, she was admitted to the XXXXX treatment center at XXXXX XXXXX Medical Center for an ingestion of controlled substances; that her injury was self-inflicted, caused by a voluntary overdose of substances including Loritab, Xanax, and Methamphetamine.

This item also speaks directly to the best interests of the child, because it is an admitted suicide attempt, and it is admitted use of heavily-controlled substances, indicating Plaintiff’s extreme instability and the inappropriate nature of any placement with her.

  • Defendant ADMITTED that she was arrested in possession of marijuana and at least one (1) other kind of controlled substance immediately after her father died.

It is important to note when discussing the question of custodial rights of the parties, given that Plaintiff seeks sole custody and the complete exclusion of Defendant from any and all future interactions with the child in question, that Defendant has been arrested on multiple occasions, generally oriented around or arising from the use of controlled substances, whereas Plaintiff has been arrested exactly one (1) time in his life, on charges directly related to and arising from his residence in a household with Defendant.


The standard of “the best interests of the child” for Georgia courts is spelled out carefully in Section 19-9-3(a)(3).  It enumerates certain factors that have been addressed in the negative by Defendant’s legally-binding admissions, already.  That Section lists these factors as including the following:

  • The love, affection, bonding, and emotional ties existing between each parent and the child;
  • The love, affection, bonding, and emotional ties existing between the child and his or her siblings, half siblings, and stepsiblings and the residence of such other children;
  • The capacity and disposition of each parent to give the child love, affection, and guidance and to continue the education and rearing of the child;
  • Each parent’s knowledge and familiarity of the child and the child’s needs;
  • The capacity and disposition of each parent to provide the child with food, clothing, medical care, day-to-day needs, and other necessary basic care, with consideration made for the potential payment of child support by the other parent;
  • The home environment of each parent considering the promotion of nurturance and safety of the child rather than superficial or material factors;
  • The importance of continuity in the child’s life and the length of time the child has lived in a stable, satisfactory environment and the desirability of maintaining continuity;
  • The stability of the family unit of each of the parents and the presence or absence of each parent’s support systems within the community to benefit the child;
  • The mental and physical health of each parent;
  • Each parent’s involvement, or lack thereof, in the child’s educational, social, and extracurricular activities;
  • Each parent’s employment schedule and the related flexibility or limitations, if any, of a parent to care for the child;
  • The home, school, and community record and history of the child, as well as any health or educational special needs of the child;
  • Each parent’s past performance and relative abilities for future performance of parenting responsibilities;
  • The willingness and ability of each of the parents to facilitate and encourage a close and continuing parent- child relationship between the child and the other parent, consistent with the best interest of the child;
  • Any recommendation by a court appointed custody evaluator or guardian ad litem;
  • Any evidence of family violence or sexual, mental, or physical child abuse or criminal history of either parent; and
  • Any evidence of substance abuse by either parent.


The standard for loss of parental power in this kind of case, in which child custody is sought by the natural parent who has not obtained – but seeks – an order of legitimation from the Court, is clearly stated in Section 19-7-1(b.1): “parental power may be lost by the parent, parents, or any other person if the court hearing the issue of custody, in the exercise of its sound discretion and taking into consideration all the circumstances of the case, determines that an award of custody to such third party is for the best interest of the child or children and will best promote their welfare and happiness. There shall be a rebuttable presumption that it is in the best interest of the child or children for custody to be awarded to the parent or parents of such child or children, but this presumption may be overcome by a showing that an award of custody to such third party is in the best interest of the child or children. The sole issue for determination in any such case shall be what is in the best interest of the child or children.”  Speaking as to what custodial arrangement should prevail, the Georgia Code is also clear in Section 19-9-3(a)(1) that “[t]here shall be no presumption in favor of any particular form of custody, legal or physical, nor in favor of either parent.”  Section 19-9-3(a)(2) further clarifies this by saying that “[t]he duty of the judge in all such cases shall be to exercise discretion to look to and determine solely what is for the best interest of the child and what will best promote the child’s welfare and happiness and to make his or her award accordingly.”  The Code section makes it clear that sole custody is an option for the judge to decide, and sole custody is plainly apparent in this case because it is the option that “will best promote the child’s welfare and happiness”.  The rebuttable presumption described by the Code, that it is in the best interest of the child for custody to be awarded to the parent, has been overcome, because Plaintiff has successfully shown “than an award of custody to such third party is in the best interest of the child”.  The Court is urged to decide accordingly.

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