Juanda Roberts v. Kevina McCoy

Court of Appeals of the State of Georgia

ATLANTA,____________________ March 10, 2022

The Court of Appeals hereby passes the following order: A22D0258. JUANDA ROBERTS et al. v. KEVINA MCCOY et al.

Juanda and Leighton Roberts (the “Applicants”) filed a petition for third-party custody under OCGA § 19-7-3.1, the Equitable Caregiver Act, against Kevina McCoy and William Kemp (the “Biological Parents”) regarding minor child J.K. The Applicants sought to be adjudicated as equitable caregivers and granted custody of the child.1 The Biological Parents each filed a motion to dismiss the petition. The superior court entered a “Final Order” granting the motions to dismiss, finding that the Applicants did not establish standing to maintain the action under OCGA § 19-7-3.1 (d). The Applicants then filed this timely application for discretionary review. Under OCGA § 5-6-34 (a) (11), direct appeals are permitted from “[a]ll judgments or orders in child custody cases awarding, refusing to change, or modifying child custody[.]”2 Thus, the superior court’s order here is directly appealable. Id.; see, e.g., Skinner v. Miles, 361 Ga. App. 764 (863 SE2d 578) (2021) (entertaining direct appeal from trial court’s ruling in action under the Equitable

1 Applicant Leighton Roberts is Kevina McCoy’s first cousin, and the Applicants had previously entered into a temporary guardianship agreement with McCoy to care for the child. 2 Although the trial court’s order is entitled “Final Order,” it indicates that the Biological Parents have filed additional claims and motions, and it is not clear from the application materials whether the action remains pending below. However, even if the action remains pending, interlocutory orders involving child custody are subject to direct appeal. See Taylor v. Curl, 298 Ga. App. 45, 45 (679 SE2d 80) (2009).

Caregiver Act); In the Interest of K. L., __ Ga. App. __ (Case No. A21A1233) (Feb. 11, 2022) (same). This Court will grant a timely application for discretionary review if the lower court’s order is subject to direct appeal. See OCGA § 5-6-35 (j). Accordingly, this application is hereby GRANTED. The Applicants shall have ten days from the date of this order to file a notice of appeal in the superior court. See OCGA § 5-6-35 (g). If the Applicants already have filed a notice of appeal in the superior court, then they need not file a second notice. The clerk of the superior 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 Clerk’s Office, Atlanta,____________________ 03/10/2022 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.