Working with Child Deprivation Cases in Georgia's Juvenile Courts

Under the Georgia Constitution, the Superior Court system has original jurisdiction over divorce actions. Ga. Const. 1983, Art. VI, § IV, é I. The Juvenile Court has concurrent jurisdiction with the Superior Court of that circuit to determine child support and custody issues only when the case is transferred by a proper order of the Superior Court. O.C.G.A. § 15-11-5(c). The Juvenile Court does not retain jurisdiction to hear a petition for custody filed by a child's paternal grandparents after making a finding that the child is deprived and transferring temporary legal custody of the child to DFCS. This petition was not in the nature of a deprivation petition and did not request a change in custody because the children were deprived. There was no proper transfer of such a case from Superior to Juvenile Court to allow the court to consider this request. In the Interest of C.C., et al., Children, 193 Ga. App. 120 (1989).

Some confusion arises when deprivation is alleged in a custody battle between the child's parents or third parties. It was not the intention of the General Assembly to grant the juvenile courts original jurisdiction over the custody of a child when there is a dispute between the parents. Bartlett v. Bartlett, 99 Ga. App. 770 (1959). Juvenile courts should not accept a deprivation petition filed by one parent against another because it is a prima facie custody matter, and most likely an attempt to gain custody of the child by bypassing a more stringent standard of proof necessary to modify a custody award. In the Interest of W.W.W., 213 Ga. App. 732 (1994). All deprivation proceedings arising between the child's parents should be filed originally in superior court. If the superior court judge determines that the deprivation proceeding is not a custody dispute in disguise, the judge will transfer the deprivation issues to the juvenile court for adjudication. In the Interest of M.A. et al., Children, 218 Ga. App. 433 (1995). Thus, during the investigation of an allegation of deprivation, the law guardian should first and foremost ascertain that the complaint filed with the juvenile court is NOT a custody "battle," disguised as allegations of deprivation. In another case, the Court of Appeals has held that an order of a juvenile court changing the custody of a child was not a modification on a determination that the children were deprived in their current environment. In the Interest of A.L.L., 211 Ga. App. 767 (1994).

In many jurisdictions, a superior court judge holds the dual position of a juvenile court judge for each of the counties within his/her judicial circuit. The Georgia Supreme Court has held that in such situations the trial judge could arguably exercise authority as both a superior and juvenile court judge simultaneously. However, in a final hearing on custody in a divorce action in a superior court, a trial judge may not make a finding that neither parent is fit and transfer custody of the child to DFCS with no notice to the parents that this issue would be raised or that they might possibly come under the jurisdiction of the Juvenile Court during this hearing. Watkins v. Watkins, 266 Ga. 269 (1996). In that case, no deprivation petition had been filed with the court and no notice was given to the parents about the potential ramifications of this hearing had the judge chosen to exercise his powers as a Juvenile Court Judge during the hearing. While the judge can exercise the power of both courts at once, due process requires the notice and hearing requirements of the Juvenile Court to be adhered to. Id. at 272, 273. These requirements will be discussed in later chapters.

The authority of the Juvenile Court to appoint a guardian ad litem, which can be an attorney or volunteer, is provided for in O.C.G.A. § 15-11-55. That section states that the court shall appoint a guardian ad litem (GAL) for a child where there is "no parent, guardian, or custodian appearing on his behalf or if their interests conflict with his or in any other case in which the interests of the child require a guardian." The section further states that the court shall not appoint a party to the proceeding, his employee, or representative as guardian ad litem.