Rebecca Boehmer Epstiner v. Tyler Dean Spears

Court of Appeals of the State of Georgia

ATLANTA,____________________ July 06, 2016

The Court of Appeals hereby passes the following order: A16D0410. REBECCA BOEHMER EPSTINER v. TYLER DEAN SPEARS.

Tyler Dean Spears and Rebecca Boehmer Epstiner are the biological parents of a child born on December 30, 2010. Spears petitioned to legitimate the child and establish custodial rights. The trial court granted Spears’s petition to legitimate, awarded Spears joint legal custody, established a visitation schedule, and ordered that Spears pay child support. Spears moved to set aside or to amend the order because the visitation schedule was inaccurately reflected in the court’s order. The court granted the motion to set aside and entered an amended order. Epstiner seeks 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 amended order in this case established legal custody over the child and granted Spears 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. Epstiner shall have ten days from the date of this order to file a notice of appeal with the trial court. If, however, she has already filed a notice of appeal, she 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 07/06/2016 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.