LENSEY WALLACE v. STEPHANIE CHANDLER

L
                              SECOND DIVISION
                                MILLER, P. J.,
                            HODGES and PIPKIN, JJ.

                   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

                   DEADLINES ARE NO LONGER TOLLED IN THIS
                   COURT. ALL FILINGS MUST BE SUBMITTED WITHIN
                   THE TIMES SET BY OUR COURT RULES.


                                                                     April 22, 2021



In the Court of Appeals of Georgia
 A21A0648. WALLACE v. CHANDLER et al.

      PIPKIN, Judge.

      Following the grant of her application for discretionary review, Lensey Wallace

(“the Mother”) appeals from the trial court’s order denying her motion to set aside an

order granting custody of her minor child to appellees Stephanie Chandler and

George Chandler (“the Chandlers”). Because we agree with the Mother that the

Chandlers lacked standing and that the trial court’s custody order was void, we now

reverse.

      The scant record does not reveal a full picture of the attendant facts and

circumstances, and we must glean what we do know from the custody petition,

motion to set aside, the trial court’s orders, and the undisputed facts stated in the

parties’ briefs on appeal. The minor child was born in 2016 and had been placed in
the Chandlers’ care pursuant to an order of the Catoosa County Juvenile Court in a

pending dependency action. The Chandlers filed their custody petition in the Superior

Court of Catoosa County on May 5, 2017. The petition named the Mother, the

biological father, and the maternal grandmother as respondents, and the petition noted

that the Mother was currently incarcerated. The petition stated that the minor child

was “deprived” and sought removal of the minor child from the custody of her

biological parents, with sole custody vested in the Chandlers. The petition also recited

that awarding custody to the Chandlers was in the best interest of the child.

      The Mother, who remained incarcerated, did not file a response to the petition,1

and, on August 1, 2017, following a hearing at which only the Chandlers and their

attorney appeared, the trial court entered a “Final Order of Custody/Parenting Plan.”

The court found by clear and convincing evidence that placing custody of the minor

child in the exclusive care of the Chandlers, who were described as the child’s




      1
       The child’s biological father acknowledged service but also did not file a
response to the petition.

                                           2
“fictive kin,” was in the child’s best interest.2 The court also ruled that any visitation

between the biological parents and the child would be in the exclusive discretion of

the Chandlers, and if the parties could not agree on visitation times or places, the

biological parents could pay for supervised visitation sessions. Further, the trial court

ordered the Mother and the biological father to pay child support.

      On April 2, 2020, the Mother filed a motion to set aside the final order of

custody pursuant to OCGA § 9-11-60, raising three main arguments: 1) the Chandlers

lacked standing, citing OCGA § 19-7-1 (b.1); 2) the superior court lacked subject

matter over the petition for custody, and, accordingly, the final order was void on its

face and void ab initio; and 3) the Chandlers’ petition was more in line with a

dependency petition and thus within the exclusive jurisdiction of the juvenile court

pursuant to OCGA § 15-11-10 (1) (C).3 Following a hearing,4 the trial court


      2
        The trial court also made a number of other findings, including that the
parents continued to have a substance abuse problem and had failed to cooperate with
the Department of Family and Children Services with regard to a reunification plan
with the child. The order also noted that the child had been in the care of the
Chandlers for an extensive period and was thriving in their care.
      3
       In her brief in support of her motion, the Mother asserted the additional
ground that the trial court applied an improper standard in making its custody
determination.
      4
          The hearing transcript has not been provided as part of the record on appeal.

                                            3
summarily concluded that the custody order was voidable, not void, and denied the

motion to set aside. The mother filed her application for discretionary appeal, which

we granted, and this appeal timely followed.

      Under OCGA § 9-11-60 (d), a judgment may be set aside based on, among

other things, “[l]ack of jurisdiction over the person or subject matter,” or “[a]

nonamendable defect which appears upon the face of the record or pleadings.”

Id.

“We review a

ruling on a motion to set aside for abuse of discretion and affirm if

there is any evidence to support it.” Vasile v. Addo, 341 Ga. App 236, 240 (2) (800

SE2d 1) (2017). With respect to questions of law, however, we employ a “de novo

standard of review, meaning that we owe no deference to the trial court’s ruling and

apply the plain legal error standard of review.” (Punctuation omitted.)

Id.

As we do

in most cases that concern parental rights, we start with the

recognition that a parent has “a constitutional right under the United States and

Georgia Constitutions to the care and custody of their children” and that this “is a

fiercely guarded right that should be infringed upon only under the most compelling

circumstances.” (Citation and punctuation omitted.) Clark v. Wade, 

273 Ga. 587

, 596

(IV) (544 SE2d 99) (2001) (plurality opinion). This right is guarded in our law in a

number of ways, including a constitutionally based presumption that works in favor

                                         4
of preserving parental custody and a statutory scheme that has been enacted by the

glegislature to protect this right while balancing the need to protect the welfare of the

child. See Jewell v. McGinnis, 

346 Ga. App. 733

, 736 (1) (816 SE2d 683) (2018); see

also Fyffe v. Cain, 

353 Ga. App. 130

, 130 (1) (836 SE2d 602) (2019) (physical

precedent only); Mashburn v. Mashburn, 

353 Ga. App. 31

, 41-42 (1) (836 SE2d 131)

(2019).

      In general, third parties have no right to seek custody of a child whose parents

have not lost custody by one of the means established in OCGA § 19-7-1 or OCGA

§ 19-7-4 or have not been deemed unfit. Villenueve v. Richbourg 

217 Ga. App. 354

,

354 (1) (457 SE2d 821) (1995); Brooks v. Carson, 

194 Ga. App. 365

, 367 (2) (390

SE2d 859) (1990) (physical precedent only), overruled on other grounds by Mayor

& Alderman of City of Savannah v. Norman J. Bass Constr. Co., 

264 Ga. 16

(44 SE2d

63) (1994). There is no indication that any of these circumstances apply here, and

“[n]othing in [final order of custody] amounted to an adjudication that, through one

of the ways recognized in OCGA §§ 19-7-1 and 19-7-4, or through unfitness [the

Mother] had lost [her] right to custody.” Oni v. Oni, 

351 Ga. App. 400

, 406 (1), n.11

(830 SE2d 775) (2019).



                                           5
      However, in 1996, our General Assembly amended OCGA § 19-7-1 to provide

a means whereby certain specified third parties can petition for custody even in those

circumstances where the parents may not have lost their right to custody through the

other provisions of that Code section “or any other law . . . .” See OCGA § 19-7-1

(b.1); Ga. L. 1996, p. 412, § 1. The Mother argues that OCGA § 19-7-1 (b.1) is

limited to the third-party relatives specified in that code section, and does not grant

the Chandlers, as non-relatives, standing to file a custody petition against a parent.

The Chandlers urge a different interpretation of the statute, arguing that OCGA § 19-

7-1 (b.1) merely governs custody disputes between parents and certain specified

third-party relatives, but does not limit or “prevent third party non-relatives from

having the ability to obtain custody of a child.” However, as our Supreme Court has

held, “OCGA § 19-7-1 (b.1) expressly limits third parties who may seek custody to

a specific list of the child’s closest relatives, including an adoptive parent.” Clark v.

Wade, 

273 Ga. 587

, 597 (IV) (544 SE2d 99) (2001). Further, numerous other cases

from our appellate courts have made it plain that “OCGA § 19-7-1 (b.1) . . .

specifically limits the class of third parties who may petition for custody to

grandparent, great-grandparent, aunt, uncle, great aunt, great uncle, sibling, or

adoptive parent.” (Punctuation omitted.) Brock v. Brown, 

354 Ga. App. 63

, 63-64 (1)

                                           6
(840 SE2d 155) (2020) (holding that a temporary co-guardian without biological ties

to the minor child lacked standing to petition the superior court for permanent

custody). See Walls v. Walls, 

278 Ga. 206

, 207, n.3 (599 SE2d 173) (2004) (under

OCGA § 19-7-1 (b.1), third parties to whom a court may grant custody of a minor

child “are limited to grandparent, great-grandparent, aunt, uncle, great aunt, great

uncle, sibling, or adoptive parent”); Baskin v. Hale, 

337 Ga. App. 420

, 423 (1) (787

SE2d 785) (2016) (although former boyfriend had shared parenting duties with

mother, lived in the home and helped raise the minor child, he had no basis for

obtaining custody under OCGA § 19-7-1 (b.1) when he was neither an adoptive

parent nor one of the relatives listed in that code section.); In the interest of C. L., 

284

Ga. App. 674

, 675 (1) (644 SE2d 530) (2007) (once the biological father legitimated

the child, mother’s husband to whom she was married when she gave birth to the

child was no longer considered the legal father of the child and thus he “was not one

of the limited number of related third parties who may seek custody from a legal

parent”). Accordingly, the Chandlers did not have standing under OCGA § 19-7-1

(b.1).

         The Chandlers also point to the superior court’s “inherent authority,” citing

White v. Bryan, 

236 Ga. 349

(223 SE2d 710) (1976), Howell v. Gossett, 

234 Ga. 145

                                             7
(214 SE2d 882) (1975), and Chapin v. Cummings, 

191 Ga. 408

(12 SE2d 312)

(1940), for the proposition that “[t]he Appellate Courts have long held that a third-

party non-relative has standing to bring an action for custody.” However, those cases,

which pre-date the enactment of OCGA § 19-7-1 (b.1), involve habeas corpus

proceedings initiated by the child’s biological father to regain custody from the

child’s step-father, not the other way around.5 More importantly, none of those cases

specifically address the standing of a non-relative to initiate custody proceedings

against a biological or legal parent. “Issues merely lurking in the record, neither

brought to the court’s attention nor expressly ruled upon, have not been decided so

as to constitute precedent.” (Citation and punctuation omitted). Yim v. Carr, 349 Ga.

App. 892, 897 (2) (827 SE2d 685) (2019). Thus, these cases do not demonstrate that

the Chandlers had standing to bring the custody petition in this case.

      As the Mother points out, the Chandlers were not without redress. First, they

could have filed a dependency petition under OCGA § 15-11-150,6 and the Chandlers

      5
        In all three cases, the mother had been awarded custody of the child following
the biological parents’ divorce. The mother subsequently remarried and then later
died, leaving the child at least temporarily in the custody of the step-father.
      6
         In relevant part, that code section states that “any person who has actual
knowledge of the abuse, neglect, or abandonment of a child . . . [is authorized to file]
a petition alleging dependency[.]”

                                           8
now argue in their brief on appeal that they in fact made an assertion of dependency

in their petition. However, what they fail to point out is that the juvenile court has

“exclusive original jurisdiction” over all such petitions, see OCGA § 15-11-10 (1)

(C), depriving the superior court of subject matter jurisdiction even if they had

asserted such a claim.7 Further, effective July 2019, the Georgia General Assembly

enacted a statute specifically granting standing to “equitable caregivers” to seek

custody of a minor child without “disestablish[ing]” the parentage of the child. See

OCGA § 19-7-3.1 (b) (4), (g) & (j). While that statute was not in effect at the time the

Chandlers first filed their petition, it does provide another avenue for a non-relative

to obtain custody of a child in their care.

      Accordingly, we agree with the Mother that, under the circumstances of this

case insofar as they are apparent from the record before us, it does not appear that the

Chandlers, as third party non-relatives, had standing to initiate these proceedings in

superior court seeking custody of the minor child who had been placed by another

court, at least temporarily, in their custody. As our Supreme Court has explained,


      7
       In fact, it appears that there were ongoing proceedings in the juvenile court
concerning the minor child and that the Chandlers were awarded temporary custody
of the child as part of those proceedings; the record does not explain why the
Chandlers initiated these separate proceedings in the superior court.

                                              9
“The constitutional and procedural concept of ‘standing’ falls under the broad rubric

of ‘jurisdiction’ in the general sense, and . . . a plaintiff with standing is a prerequisite

for the existence of subject matter jurisdiction.” Blackmon v. Tenet Healthsystem

Spalding, Inc., 

284 Ga. 369

, 371 (667 SE2d 348) (2008). “A judgment rendered by

a court without jurisdiction of the subject matter is absolutely void.” Williams v.

Fuller, 

244 Ga. 846

, 848 (2) (262 SE2d 135) (1979). See also OCGA § 9-12-16 (“The

judgment of a court having no jurisdiction of the person or the subject matter or

which is void for any other cause is a mere nullity and may be so held in any court

when it becomes material to the interest of the parties to consider it.”) Accordingly,

the superior court lacked jurisdiction to enter the custody order at issue and should

have set aside that order as void. The order denying the Mother’s motion to set aside

must be reversed.

       Judgment reversed. Miller, P. J., and Hodges, J., concur.




                                             10

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