Unofficial Opinion 94-1
Stone Mountain Judicial Circuit
When a superior court transfers the question of custody determination to a juvenile court pursuant to O.C.G.A. § 15-11-6(b), the juvenile court may make a temporary custody determination pending the outcome of the divorce action; only if the divorce is entered can it then make a permanent custody determination.
This is in response to your request for my opinion as to whether a juvenile court is required to make a determination of permanent child custody when the question is transferred from a superior court in a pending divorce action.
The authority of a superior court to make custody determinations flows from O.C.G.A. § 19-9-1(a) which provides, in pertinent part, as follows:
In all cases in which a divorce is granted, the party not in default shall be entitled to the custody of the minor children of the marriage. However, in all cases in which a divorce is granted, an application for divorce is pending, or a change in custody of a minor child is sought, the court, . . . after hearing
both parties, may make a different disposition of the children, placing them, if necessary, in possession of guardians appointed by the judge of the probate court.
When construing the legislative history of this statute and its predecessor (former Ga. Code Ann. § 30-127), the Georgia Court of Appeals has concluded that "the legislature intended only to provide authority for the issuance of temporary and not permanent custody orders in those circumstances where 'an application for divorce is pending.'" Rowe v. Rowe, 195 Ga. App. 493, 495 (1990) (emphasis in original).
Where child custody is the subject of controversy, except in those cases "where the law gives the superior courts exclusive jurisdiction, . . . the juvenile court shall have concurrent jurisdiction to hear and determine the issue of custody and support when the issue is transferred by proper order of the superior court." O.C.G.A. § 15-11-5(c). Although superior courts are vested with exclusive jurisdiction "in divorce cases" by the Georgia Constitution, Art. VI, Sec. IV, Para. I, the Georgia Supreme Court has held that this "does not include the determination of custody of minor children." In the Matter of J.S.S., 175 Ga. App. 361, 363 (1985), quoting Wilbanks v. Wilbanks, 220 Ga. 665, 666 (1965).
In order to "provide specific authorization for the transfer of questions concerning custody and support to the juvenile court in those cases over which the superior court otherwise would exercise exclusive jurisdiction," In the Interest of D.N.M., 193 Ga. App. 812, 813 (1989), the legislature enacted O.C.G.A. § 15-11-6(b), which provides as follows:
Courts of record, in handling divorce, alimony, or habeas corpus cases involving the custody of a child or children, may transfer the question of the determination of custody and support to the juvenile court for investigation and a report back to the superior court or for investigation and determination. If the referral is for investigation and determination, then the juvenile court shall proceed to handle the matter in the same manner as though the action originated under this article, in compliance with the order of the superior court. At any time prior to the determination of such question, the juvenile court may transfer the jurisdiction of the question back to the referring superior court.
When deciding what custody issues may be transferred by the superior court and decided by the juvenile court, it is necessary to read, and harmonize if possible, statutes such as O.C.G.A. §§ 15-11-6(b) and 19-9-1 in para materia. Bennett v. Wood, 188 Ga. App. 630, 631 (1988). Thus, although the superior court clearly can transfer to the juvenile court the issue of child custody determination, the type of determination to be made depends upon the stage of the divorce proceedings in the superior court. If the divorce action is still pending, the superior court can only transfer that quantum of custody determination which it itself could make, i.e., temporary custody. Once the divorce is finalized, however, the superior court could either make a permanent custody determination itself or refer it to the juvenile court for determination. "If the referral is for investigation and determination, then the juvenile court shall proceed to handle the matter in the same manner as though the action originated under [the Juvenile Court Code], in compliance with the order of the superior court." O.C.G.A. § 15-11-6(b). "That means the juvenile code substantive and procedural rules . . . must be followed." Hancock, supra, at 293.
In response to that aspect of your question which focuses on whether the juvenile court is "required" to accept custody determination transfers as described above, you will note that O.C.G.A. § 15-11-6(b) specifically states that "[a]t any time prior to the determination of such question, the juvenile court may transfer the jurisdiction of the question back to the referring superior court." Obviously, the plain meaning of that statute is that the juvenile court can exercise its discretion and transfer the matter back to the superior court, if need be. However, I would point out that the Georgia Supreme Court, in broadly interpreting provisions of the same statute, has emphasized that "[o]ur concern is that no shackles be placed on the power of a superior court to protect the welfare of children caught up in litigation before the court." Hancock, supra, at 293. The juvenile courts of this state have exclusive original jurisdiction over children who are alleged to be delinquent, unruly, deprived or in need of mental health treatment, O.C.G.A. § 15-11-5(a), and, as a consequence, have developed some expertise in dealing with child custody and other juvenile matters. Therefore, I would think that the juvenile court should accept and determine such custody transfers in conformance with the superior court order to the extent possible under the law, before exercising its judicial discretion to transfer the matter back. In the particular case you brought to my attention, the juvenile court first could have made a temporary custody determination pending the outcome of the divorce action, and then, when the divorce was entered, could have made the final, permanent custody determination.
In conclusion, it is my unofficial opinion that when a superior court transfers the question of custody determination to a juvenile court pursuant to O.C.G.A. § 15-11-6(b), the juvenile court may make a temporary custody determination pending the outcome of the divorce action; only if the divorce is entered can it then make a permanent custody determination.
CAROL ATHA COSGROVE
Senior Assistant Attorney General
The term "divorce cases" has been broadly interpreted to include contempt proceedings brought to enforce the provisions of a divorce decree. Hancock v. Coley, 258 Ga. 291, 293 (1988).
"Custody and support" have also been given a broad interpretation so that they include termination of parental rights, Hancock, supra, at 293 and visitation, In the Interest of D.N.M., supra, at 813.
"The provisions of O.C.G.A. § 15-11-6(b) are permissive only. The superior court is not mandated to issue such a transfer order and the refusal to do so is not reversible error." In the Matter of J.S.S., supra, at 365 n.2.