WHITNEY SHEA HACKETT v. JAMES STAPLETON ( 2022 )

SECOND DIVISION
RICKMAN, C. J.,
MILLER, P. J., and PIPKIN, J.
NOTICE: Motions for reconsideration must be
physically received in our clerk’s office within ten
days of the date of decision to be deemed timely filed.
https://www.gaappeals.us/rules
August 26, 2022
In the Court of Appeals of Georgia
A22A0773. HACKETT v. STAPLETON et al.
RICKMAN, Chief Judge.
Following the trial court’s adjudication of James and Shirley Stapleton as
equitable caregivers of a minor child, grant of legal and physical custody of the child
to the Stapletons and denial of the father’s legitimation petition, the mother appeals.
The mother contends that the trial court erred by adjudicating the Stapletons equitable
caregivers, awarding custody to the Stapletons, denying the father’s legitimation
petition, and awarding court registry funds to the Stapletons. For the following
reasons, we affirm in part, reverse in part, and remand this case with direction.
We review the evidence in the light most favorable to the trial court’s
judgment. Miles v. Skinner, 361 Ga. App. 764, 764 (863 SE2d 578) (2021). So
viewed, the evidence showed that the mother was 20 years old when she gave birth
to the child. At the time of the birth, the mother lived with the child’s maternal
grandmother. The child’s father was deployed in Iraq when he learned the mother was
pregnant with the child. At the time the child’s father learned of the pregnancy, he
testified that the mother expressed that she was not aware of the child’s paternity.
After the child was born, the maternal grandmother was given guardianship of
the child when he was approximately six months old. The grandmother also obtained
a protective order against the mother. The grandmother informed Mrs. Stapleton that
the reasons for the protective order were that the mother demanded that the
grandmother take care of the child and hit the grandmother at some point. The
grandmother knew the Stapletons from work and church and they began to keep the
chid occasionally. In the beginning, the child would stay with the Stapletons for just
a few hours or overnight. Eventually, however, the child began staying with the
Stapletons on a full-time basis. This transition occurred when the child was between
six and eleven months of age. When the child was 11 months old, the grandmother
obtained a more permanent guardianship order and the Stapletons cared for the child
full time.
Despite not having a court order giving them any custody of the child, the
Stapletons remained the child’s primary caregivers. The mother continued to interact
2
with the child while he was in the Stapletons’ care. The child saw the mother when
he visited with his grandmother and she attended birthday parties and cook outs at the
Stapleton’s home. The mother has always had a room for the child at her home and
she testified that it has always been her hope that he would come to live with her.
After the child’s birth, the mother married and had two other children.
When the child was nine years old, the mother discovered that the grandmother
had “dropped” the protective order granting her custody. When the mother arranged
for the child to go to the zoo with her other children, a dispute arose between the
mother and the Stapletons about the trip. The child ultimately went to the zoo with
the mother, who chose to not return him to the Stapletons.
After the zoo trip, the Stapletons filed both a petition for adoption and a motion
for expedited hearing and immediate placement of the child. The trial court granted
the Stapletons sole and legal custody of the child during the pendency of the action.
The trial court also appointed a guardian ad litem (“GAL”) and granted visitation to
the mother.
Thereafter, the child’s father filed a petition for legitimation and child custody.
Following the filing of the legitimation petition, the Stapletons stipulated that the trial
court could not grant their petition for adoption, but that they had standing to seek
3
custody of the child pursuant to OCGA § 19-7-3.1, the adjudicated equitable
caregiver statute. Additionally, the Stapletons amended their adoption petition
seeking to be adjudicated equitable caregivers and to be granted sole and, permanent
legal and physical custody of the child.
At the final hearing on all the parties motions, Mrs. Stapleton testified that she
had concerns about the child while he was at the mother’s house. Mrs. Stapleton
explained that in past conversations that she had with the grandmother, she was told
that on one occasion the mother and her husband were “arguing and fighting” and that
the mother used bad language. Mrs. Stapleton was asked if she thought she was a
better parent “simply because [she doesn’t] curse” and she responded “I don’t cuss
in front of him. I think that’s better raising, yes, ma’am.” When asked if she thought
if the child was exposed to these things if he would suffer harm at the mother’s home,
Mrs. Stapleton replied, “[i]t’s possible.”
As to the child’s father, Mrs. Stapleton testified that at the time the child began
living with them, she had no knowledge about the father’s identity. At some point,
Mrs. Stapleton did learn of the father’s name and he came to her residence for a
holiday when the child was a toddler. The father did not visit their home again prior
to her filing the instant action. The father was awarded visitation during the pendency
4
of this action and Mrs. Stapleton testified that “[h]e would get [the child] on a Friday
afternoon, [and] bring him back Friday night. Then he could get him on Saturday
morning and get him back Saturday night for so many visits.” The father exercised
all but one of those visitation opportunities. The father also reached out to the child
with text messages and phone calls.
The father testified that he was married and had three other children, one
biological and two step children, all of whom live with him and his wife. The father
was deployed in Iraq when the child at issue was born and was stationed in Texas
when he returned. He explained that when he got back from deployment he
immediately took a DNA test and started paying child support to the grandmother.1
As to developing a relationship with the child, the father testified that he met with the
mother and grandmother along with the child when he was an infant. The father
subsequently tried to see the child whenever he came home.
When he moved back to Georgia, the father continued to try to get in touch
with the mother and the grandmother to see the child. The father was able to arrange
to see the child in public places and attended one of his youth sporting eventsn. The
1
The grandmother received all of the child support paid from 2011 to 2019 and
she testified that none of that money was ever given to the Stapletons. She testified
that she spent most of the money received on items for the child.
5
father also reached out to the Stapletons on a social media platform explaining that
he was paying child support and was having trouble seeing the child. The father did
not receive a response. Moving forward, prior to the filing of the adoption petition,
the father testified that he was able to talk to the child once or twice a month.
A counselor hired by the Stapletons testified as an expert to explain what he
had learned as the child’s counselor and to make recommendations based on that
relationship. The counselor had met with the child 11 times over a three-month
period. He testified that the Stapletons provide for the child’s daily needs and that the
child and the Stapletons have a healthy interaction with each other. When asked about
the potential consequences of removing the child from the Stapletons, the counselor
responded,
Not even specific to this situation, but overall from experience, any
removal for a child that’s been with a family this long, ever since
basically very, very early in his life, I believe from experience would be
very detrimental to his mental health and could continue to carry on into
physical health and all kinds of other things. Just the unnecessary
interruption that that would cause in his life I think could be very
detrimental.
The counselor opined that the child should remain with the Stapletons full-time and
that the mother and father be given some sort of visitation.
6
Finally, the GAL testified that she had been the child’s GAL for approximately
15 months. In that capacity, she had interviewed the Stapletons, the mother and her
husband, the father and his wife, school counselors, teachers, employers for the
parents, and the grandmother. When she first met the child, he was excited for his
father to legitimate him and requested that he be given his father’s name. Later, the
child indicated that he was “fussed at” by Mr. Stapleton for desiring to have his
father’s name. When discussing the issues the Stapletons had with the mother and the
father, the GAL testified that they did not have concerns about drug usage, job
instability or homelessness, “it was just basically, you know, that was a thing for them
that they cursed.” Both parents and the mother’s husband volunteered and passed
drug screens.
The GAL testified that she believed the child was conflicted as to what he
wanted and he really wanted all parties to get along. The GAL also had concerns
because the child did not feel comfortable sharing everything about his life with the
Stapletons, including secretly meeting with the mother’s other children, his siblings,
at school, and that Mrs. Stapleton struggled to share the child with his parents.
In her report, the GAL recommended that the mother have custody of the child
explaining:
7
[A] s this case has moved forward, it has become clear that the only way
to facilitate a healthy relationship between this child and all of the
parties is for him to be in the custody of one of his parents. . . . The
guardian has not been given any evidence of any HARM that would
come to this child should he return to his mother’s custody. . . . This
recommendation for custody will allow more access to the child for all
parties and foster the parent-child relationship, which is fiercely guarded
under Georgia Law.
The GAL further recommended that the child have regular visitation with the
Stapletons and his father. The GAL also recommended that the father’s legitimation
action be granted because he has attempted to have a meaningful relationship with the
child and has paid child support.
Following the hearing, the trial court adjudicated the Stapletons as equitable
caregivers and then granted them legal and physical custody of the child with the
mother having visitation. The trial court denied the father’s legitimation petition,
finding that the father abandoned his opportunity interest to develop a relationship
with the child.
The mother contends that the trial court erred by adjudicating the Stapletons
equitable caregivers, awarding custody to the Stapletons, denying the father’s
legitimation petition, and awarding funds to the Stapletons.
8
1. The mother contends that the trial court erred by adjudicating the Stapletons
equitable caregivers under OCGA § 19-7-3.1.2
Pursuant to OCGA § 19-7-3.1 (d), in order for someone to establish standing
as an equitable caregiver, the trial court must find by clear and convincing evidence
that the person has:
(1) Fully and completely undertaken a permanent, unequivocal,
committed, and responsible parental role in the child’s life; (2) Engaged
in consistent caretaking of the child; (3) Established a bonded and
dependent relationship with the child, which relationship was fostered
or supported by a parent of the child, and such individual and the parent
have understood, acknowledged, or accepted that or behaved as though
such individual is a parent of the child; (4) Accepted full and permanent
responsibilities as a parent of the child without expectation of financial
compensation; and (5) Demonstrated that the child will suffer physical
2
The mother makes several arguments regarding the form of the Stapletons
petition to become equitable caregivers. OCGA § 19-7-3.1 (b) lists what should be
included in a pleading when a party is seeking to be adjudicated an equitable
caregiver. The statute also includes a sample form and referencing that form, states
that “[a] document substantially in the following form may be used to create a
pleading.” OCGA § 19-7-3.1 (c). “It has long been the rule in Georgia that substance
and not mere nomenclature controls in determining the nature of pleadings.” (Citation
omitted.) Mickas v. Mickas, 229 Ga. 10 (2) (189 SE2d 81) (1972). “Courts refrain
from attaching too much importance to the merely formal parts of a complaint and
construe pleadings so as to do substantial justice.” (Footnote omitted.) Anderson v.
Bruce, 248 Ga. App. 733, 736 (2) (548 SE2d 638) (2001). Accordingly, the trial court
properly considered the Stapletons petition to be adjudicated equitable caregivers.
9
harm or long-term emotional harm and that continuing the relationship
between such individual and the child is in the best interest of the child.
When considering whether the child will suffer harm due to the discontinuation of the
relationship between the individual and the child the court may consider,
(1) Who are the past and present caretakers of the child; (2) With whom
has the child formed psychological bonds and the strength of those
bonds; (3) Whether competing parties evidenced an interest in, and
contact with, the child over time; and (4) Whether the child has unique
medical or psychological needs that one party is better able to meet.
Here, the record shows the Stapletons fully committed to taking a parental role
in the child’s life, engaged in the caretaking of the child, and established a bond with
the child. The relationship between the Stapletons and the child has been fostered or
supported by the mother because she has been aware that the child was in their
custody for almost the entirety of his life and she acknowledged through her actions
in allowing the child to remain in their custody that she was aware they were taking
a parental role in the child’s upbringing. It is also undisputed that the Stapletons did
not receive any financial support for the child. The child support paid by the father
went to the grandmother. Lastly, it is clear from the testimony of the GAL and the
10
counselor that the child would suffer long term emotional harm if the relationship
between the child and the Stapletons’ was completely discontinued.
Accordingly, we find that the record supports the trial court’s ruling that the
Stapletons satisfied, by clear and convincing evidence, all of the required elements
of OCGA § 19-7-3.1 such that the trial court did not err when it adjudicated both of
them equitable caregivers. See Skinner v. Miles, 361 Ga. App. 764, 770 (1) (863 SE2d
578) (2021) (holding that the trial court correctly adjudicated a mother’s former life
partner as an equitable caregiver).
2. The mother contends that the trial court erred by granting the Stapletons full
legal and physical custody of the child.
After a trial court adjudicates a person an equitable caregiver, it “may enter an
order as appropriate to establish parental rights and responsibilities for such
individual, including, but not limited to, custody or visitation.” OCGA § 19-7-3.1 (g)
(emphasis supplied). Additionally, the equitable caregiver statute clarifies that “[t]he
adjudication of a person under this Code section as an equitable caregiver does not
disestablish the parentage of any other parent.” OCGA § 19-7-3.1 (f).
Unlike OCGA § 19-7-1 (b.1), which addresses custody disputes between a
parent and certain third-party relatives, the equitable caregiver statute does not
11
provide guidance on resolving custody disputes between a parent who has not
otherwise lost, forfeited or had terminated his or her parental rights and an equitable
caregiver. But because the statute states that an equitable caregiver can be given
parental rights and responsibilities we look to authority dealing with custody disputes
between parents for guidance.
The trial court’s duty when determining custody disputes between parents is
“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.” OCGA § 19-9-3 (a) (2). In determining the best
interests of the child, the judge may consider any relevant factor including, but not
limited to:
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
12
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, except to the extent as
provided in Code Section 30-4-5 and this paragraph and such factors as
provided in Code Section 15-11-26; 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.
OCGA § 19-9-3 (a) (3) (A) - (Q).
13
Here, the trial court found that “[b]ased upon the [Stapletons]’ testimony and
the testimony of expert witness, [the counselor], and considering all evidence
presented by the parties, this [c]ourt specifically finds that [the child] will suffer long-
term emotional harm if custody is not granted to [the Stapletons]” The trial court,
however, was not authorized to conclude that the Stapletons had demonstrated that
the return of the child to his mother would cause long-term emotional harm based
upon this record.
Mrs. Stapleton testified that “[i]t’s possible” the child would suffer harm if
returned to his mother and mainly focused her testimony about the mother around
complaints about the mother’s language use in the home. The counselor also did not
testify the child would suffer long term emotional harm if returned to the mother. The
counselor testified generally about the mental health consequences that can result
from the removal of a child from a primary caregiver and that the unnecessary
interruption in a child’s life could be very detrimental. The GAL, of course, testified
that it would be in the best interests of the child for custody to be with the mother,
and emphasized that the GAL herself “had not been given any evidence of HARM
that would come to this child should he return to his mother’s custody.”
14
Because the trial court’s finding that the child would suffer long-term
emotional harm was belied by the record and that finding appears to be the basis for
the trial court’s custody award, we remand this case for the trial court to again
consider the best interest of the child using OCGA § 19-9-3 as guidance. See
generally Ortega v. Temple, 359 Ga. App. 5, 13 (3) (856 SE2d 471) (2021) (where it
was unclear whether trial court used appropriate legal standard, order vacated and
case remanded for further proceedings); Lopez v. Olson, 314 Ga. App. 533, 542 (3)
(724 SE2d 837) (2012) (where trial court failed to apply the correct standard to
custody dispute, judgment vacated and case remanded for reconsideration consistent
with Court of Appeal’s opinion). We note that on remand, “[j]oint custody may be
considered as an alternative form of custody by the judge and the judge at any
temporary or permanent hearing may grant sole custody, joint custody, joint legal
custody, or joint physical custody as appropriate.” OCGA § 19-9-3 (a) (1). See
Baldwin v. Baldwin, 265 Ga. 465, 465 (458 SE2d 126) (1995) (holding that if the trial
court finds both parents fit and proper, the trial court may consider a joint custody
arrangement).
3. The mother contends that the trial court erred by denying the father’s
legitimation petition. Under Georgia law,
15
[i]n ruling on a legitimation petition presented by a biological father, the
juvenile court must initially determine whether the father has abandoned
his opportunity interest to develop a relationship with the child. If the
juvenile court concludes that the father has abandoned his opportunity
interest, that finding is sufficient to end the court’s inquiry and justifies
the denial of the legitimation petition.
(Citation and punctuation omitted.) In the Interest of J.M., 289 Ga. App. 439, 442 (1)
(657 SE2d 337) (2008). “Absent an abuse of discretion, a juvenile court’s
determination that a biological father has abandoned his opportunity interest must be
affirmed.” Id.The trial court found, inter alia, that the father failed to participate in the birth
of the child or support the mother during her pregnancy; the father initially denied
paternity, but after paternity was confirmed was ordered to pay monthly child
support; with the exception of a few gifts, the father has failed to support the child
outside of court-ordered child support; the father waited almost ten years to file for
legitimation; the father did not make significant efforts to have a meaningful
relationship with the child prior to the action filed by the Stapletons; the father only
visited the Stapletons house on Christmas Day when the child was a toddler and did
not return to their home; and the mother testified that the father made not attempts to
16
contact the child until the child’s eleventh birthday; and, as the mother testified, the
father made no attempts to contact the child for four years when the child was
younger.
First, while it is true that the father testified that he initially was unsure whether
the child was his, that does not excuse his inaction during the mother’s pregnancy or
failure to assume responsibility after his birth. See In the Interest of J. M., 289 Ga.
App. at 443 (1) (a). Second, the father waited until the child was almost ten years old
to file his legitimation petition, and this long delay supports the trial court’s
conclusion that he abandoned his opportunity interest. See id. Finally, the record
reflects that although the father did make contact with the child over the course of his
life, this contact was inconsistent and the father never established frequent visits prior
to the pendency of this action. Accordingly, we are constrained to conclude that the
trial court did not abuse its discretion in finding that the father abandoned his
opportunity interest. See id.; see also In the Interest of L. S. T., 286 Ga. App. 638, 639
(1) (649 SE2d 841) (2007).
4. The mother contends that the trial court erred by awarding the Stapletons the
amount of child support that was paid by the father into the court registry during the
pendency of this action while the Stapletons were the primary caregivers of the child.
17
Specifically, the mother argues that OCGA § 19-7-3.1 (d) (4) prohibits the
Stapletons from receiving financial compensation as equitable caregivers. That
statute, however, only required the Stapletons to show that they “accepted full and
permanent responsibilities as a parent of the child without expectation of financial
compensation.” OCGA § 19-7-3.1 (d) (4). The Stapletons clearly satisfied this
condition because, as discussed above, they were the primary caregivers of the child
for almost ten years and received no financial compensation. The trial court was not
prohibited by this statute from awarding them the child support paid into the registry
during the pendency of this action because they were the physical custodians of the
child at the time.
Judgment affirmed in part, reversed in part, and case remanded with direction.
Miller, P. J., and Pipkin, J., concur.
18