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Minor Children and the Court’s Jurisdiction

In the state of Georgia jurisdiction of the court is the court’s ability to hear a case on the basis of subject matter, personal jurisdiction, and / or previous jurisdiction. If a court system does not have jurisdiction over a case then any decisions made by the court in the case can be ruled invalid.  If a problem with jurisdiction is identified prior to a final judgment, the case may be relocated to a more appropriate court with jurisdiction or dismissed entirely. The state has firm and established guidelines for the determination of jurisdiction in the cases of minor children and other family law cases. In family law cases concerning minor children a court may hear a case if it has previous jurisdiction over the case or may hear the case if it meets the qualifications of initial jurisdiction.

A Georgia Court May Make an Initial Child Custody Decision If:

Georgia is the home state of the child on the date of the commencement of the proceeding, or was the home state of the child within six months before the commencement of the proceeding and the child is absent from the state of Georgia but a parent or person acting as a parent continues to live in the state of Georgia; [“Home state” means the state in which a child lived with a parent or a person acting as a parent for at least six (6) consecutive months immediately before the commencement of a child custody proceeding. In the case of a child less than six (6) months of age, the term means the state in which the child lived from birth with any of the persons mentioned. A period of temporary absence of any of the mentioned persons is part of the period.]

A court of another state does not have jurisdiction under paragraph (1) of this subsection, or a court of the home state of the child has declined to exercise jurisdiction on the ground that Georgia is the more appropriate forum under Code Sections O.C.G.A. 19-9-67 or O.C.G.A. 19-9-68 and:

  • The child and the child´s parents, or the child and at least one parent or a person acting as a parent, have a significant connection with Georgia other than mere physical presence; and
  • Substantial evidence is available in Georgia concerning the child´s care, protection, training, and personal relationships.

All courts having jurisdiction under paragraph (1) or (2) of this subsection have declined to exercise jurisdiction on the ground that a court of Georgia is the more appropriate forum to determine the custody of the child under Code Sections O.C.G.A. 19-9-67 or O.C.G.A. 19-9-68; or no court of any other state would have jurisdiction under the criteria specified in paragraph (1), (2), or (3) of this subsection.

From Sections O.C.G.A. 19-9-61 and O.C.G.A. 19-9-41 of the Georgia Code.

In a Georgia divorce or family law case, litigants will be required to pass a three pronged test to establish jurisdiction. If even one of the three prongs is not established then the case will be dismissed due to lack of jurisdiction. The three prong test consists of:

  • proper venue,
  • subject matter jurisdiction, and
  • personal jurisdiction

Proper Venue in a Georgia Court

A court must have proper venue to determine whether a family law case can be filed in the supreme court of the county in which the defendant lives. The Georgia Constitution outlines the requirements of proper venue as, “A civil family action should be filed in the Superior Court of the county in which the defendant lives. If the defendant is a non-resident of Georgia or cannot be located in Georgia then the divorce should be filed in the superior court of the county in which the plaintiff resides.”

Subject Matter Jurisdiction

A court also needs to establish whether or not the court has control over the subject matter of the litigation. The subject matter is primarily what the case is about.  For example, in a divorce case the subject matter is the marriage, in a legitimization case the subject matter is the acknowledgement of the child, and in child custody dispute the subject matter is the custody of the child. Again, in establishing subject matter jurisdiction in a child custody case the person filing the petition must determine and provide evidence to support the establishment of the case under law. This can be done as long as the residence has been established for more than six (6) months or if the child is a residence of the state since birth (See Code Sections O.C.G.A. 19-9-67 or O.C.G.A. 19-9-68).

What is important to take away from this is if your minor child is taken out of the state of Georgia by the other parent, and you want to have the case filed and heard in Georgia, you will not want to wait till more than six (6) months has passed to file the case.  It is always our advice to file a case as soon as it is determined to be necessary, but in no event wait more than three (3) months to start talking to attorneys about taking the case.

Personal Jurisdiction

A person must also subject their self to the personal jurisdiction of the court.  The petitioner does this by filing for a case to be herd in the court system and the respondent does this by signing an acknowledgement of service. Service of litigation may be delivered by direct service either by police or private process server and shall constitute so long as the recipient acknowledges service. If the individual is located on a visit within the state, they may still be served with the petition of the case. Furthermore, if a person cannot be located within the state, then the person may file for the case in the last known county in which they resided, or may provide service by publication so long as there was a good faith effort to locate the other party prior to the service by publication. However, service by publication can impact the case by placing limitations on the subject matter the court can rule on, which can effectively prevent the establishment of child support and custody.

If you are facing a divorce or family law case and have questions about jurisdiction, child custody and child support, call us at 770-609-1247 to speak with one of our experienced attorneys.

Content Revised: 2015-12-08

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