Holly Wilson v. Benjamin Moore

Court of Appeals of the State of Georgia

ATLANTA,____________________ June 16, 2016

The Court of Appeals hereby passes the following order: A16D0399. HOLLY WILSON et al. v. BENJAMIN MOORE.

Holly Wilson gave birth to a daughter on September 12, 2011. Benjamin Moore, the child’s biological father, subsequently petitioned to legitimate the child and establish custodial rights. The trial court granted Moore’s petition to legitimate, awarded Moore joint legal custody, established a visitation schedule, and denied Jack Wilson’s counterclaim for a step-parent adoption. The Wilsons seek discretionary review of that ruling. Pursuant to OCGA § 5-6-34 (a) (11), "[a]ll judgments or orders in child custody cases awarding, refusing to change, or modifying child custody" are directly appealable. A party seeking to challenge a child custody order, therefore, may file a direct appeal. See Cohen v. Cohen, 300 Ga. App. 7, 8 (1) (684 SE2d 94) (2009); Taylor v. Curl, 298 Ga. App. 45 (679 SE2d 80) (2009). Orders in legitimation cases that involve "the establishment of legal custody over [the] child" also are directly appealable under this same statute. Caldwell v. Meadows, 312 Ga. App. 70, 77 (4) (717 SE2d 668) (2011); see also Smith v. Pearce, 334 Ga. App. 84 (778 SE2d 248) (2015). In addition, visitation is considered a custody issue. See OCGA § 19-9-41 (4) (defining "child custody proceeding" as "a proceeding in which legal custody, physical custody, or visitation with respect to a child is an issue"). Because the order in this case established legal custody over the child and granted Moore visitation, the order is directly appealable under OCGA § 5-6-34 (a) (11). This Court will grant an otherwise timely discretionary application if the lower court's order is directly appealable and the applicant has not already filed a notice of appeal. See OCGA § 5-6-35 (j). Accordingly, this application is hereby GRANTED.

The Wilsons shall have ten days from the date of this order to file a notice of appeal with the trial court. If, however, they have already filed a notice of appeal, they need not file a second notice. The clerk of the trial court is DIRECTED to include a copy of this order in the record transmitted to the Court of Appeals.

Court of Appeals of the State of Georgia 06/16/2016 Clerk’s Office, Atlanta,____________________ I certify that the above is a true extract from the minutes of the Court of Appeals of Georgia. Witness my signature and the seal of said court hereto affixed the day and year last above written.

, Clerk.