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Redacted Motion for Summary Judgment in a Child Custody Case

by merlin on January 9th, 2018
  • Sumo

As is my practice, when I have filed something in a case, making it a public document, it is my habit to redact it and post it here for the commentary of anybody interested in debating the issue (please!), dispute the arguments, or use for their own purpose (though I do not guarantee any of the information on this website for the purposes of anybody other than my clients’ purposes, and then only to the extent of my contractual agreements with them).

Foreword: The request for summary judgment by the third-party relative in the Miller v. Rieser case below, 213 Ga. App. 683, 446 S.E.2d 2333, was denied by the Court on the basis of how fact-specific the decision to remove someone’s parental power must be, but it did not foreclose the idea of this being an appropriate method in certain situations.  In the case at bar, parental power removal is no longer necessarily an issue at all because of legally-binding admissions made in the suit, and nobody’s parental power is being removed (thus removing the issues in Miller).  The question then becomes whether this is an issue that would be appropriate for summary judgment in that situation. 

Please, discuss this in the comments!

________________________________________________________________________

MOTION FOR SUMMARY JUDGMENT

COMES NOW Respondent XXXXX XXXXX, by and through undersigned counsel, and makes and files this, his Motion for Summary Judgment which shows that based on pleadings and facts in the above-styled matter show there is no genuine issue of material fact to be tried.  Judgment should, therefore, be granted to Respondent as a matter of law, and in support thereof Respondent says the following:

1.

In this action, Petitioner XXXXX XXXXX XXXXX is seeking modification of child custody rights against Respondent XXXXX XXXXX, having become unhappy with the rights established by the divorce of the parties granted in June and alleging that there has been a material change since that time.  The second cause of action contained in her petition is for contempt against Respondent for failing to obtain insurance for the child as Respondent was Ordered to do.  The third claim involved is for attorney’s fees and expenses related to the claim.  In response, XXXXX XXXXX has brought a counterclaim alleging that she fraudulently enforced his child support obligation against him while omitting her own, and for the attorney’s fees and expenses that arise from defending against her fraudulent claims and proving the fraud that she has perpetuated upon Respondent and the child of the parties to the Court.

2.

Section 9-11-56(c) says “[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” (emphasis supplied).  This involves no official exercise of discretion by the Court, though Respondent has requested that the Court issue a ruling outlining the specific admissions that are now set as formal rules for this matter.  In this case, the Admissions made by Respondent are attached hereto and incorporated as if restated fully herein as Exhibit “A”.  These are judicial admissions that were not responded to within the time set by statute for their response, and the admissions show that Respondent is entitled to judgment as a matter of law on several, if not all, of the pending claims.

The 1994 Court of Appeals case of Miller v. Rieser, 213 Ga. App. 683, 446 S.E.2d 2333, involved a grant of summary judgment in a grandparent custody matter under OCGA § 19-7-1 that was reversed by the Court of Appeals, but it is particularly telling that the reason for the decision of the Court on the issue was that “[w]hile the question of fitness is based on present fitness, it is affected by what has gone on before to bring the parent and child to this point, and it obviously involves a determination which has significance only in the future, for it is the child’s custody from the time of the judgment forward that is at stake”.  Id. at 689.  In other words, this would ordinarily involve a determination of fact, so it would be uncertain whether the issue is amenable to summary judgment as a remedy; this inquiry is foreclosed by the judicial admissions made by Petitioner.

            As to the existence of a material change that adversely affects the best interests of the child in question, something necessary for any child custody arrangement between the parties to be altered by the Court, several of the items on Exhibit “A” speak directly to this issue, and are detailed in the attached Statement of Theory of Recovery (#’s 1-4), specifically denying that any facts were produced by Petitioner that show any harm to the health, safety, or welfare of the child of the parties, necessarily voiding any finding of either past or present unfitness.

3.

          There exists no genuine issue of material fact on the parental fitness of Respondent and no material fact regarding his provision of insurance for the child of the parties, as explained by the attached Statement of Theory of Recovery (#’s 1-4), accompanied by the admissions made by Petitioner on Exhibit “A”; further, the counterclaims of Respondent for the imposition of the established child support obligation of Petitioner and for its retroactive application to the date of the divorce of the parties, and for the costs, fees, and expenses associated with this action, are also legally proven.  Respondent is entitled to judgment as a matter of law.

WHEREFORE, Respondent XXXXX XXXXX requests the following relief:For judgment in his favor on all counts of both the Petition and the Counterclaim made to that Petition as a matter of law;

    1. For the adjustment of the child support obligation of the parties to reflect the prevailing legal standards;
    2. For a hearing to be set by this Court should it deem a hearing on the issue(s) necessary, within the time provided by law; and
    3. For such other and further relief as the Court in its discretion deems fit to grant

 

 

I will post the specific theories (1 -4) tomorrow.

 

 

 

 

 

 

 

 

Respectfully submitted, this XXX day of XXXXX, 2018.

                                                                                                                                   

 

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