Month: February 2015

Child Custody Disputes

A person going through a divorce should always seek that advice of an attorney. The divorce process can be very complicated, especially when dealing with issues of child custody and child support.  As emotions are heightened during the divorce process, it is important to keep in mind how child custody and child support issues are handled in the State of Georgia.

In most cases, the Courts encourage an active and healthy relationship between both parents and the child(ren). In order to accomplish this goal, the Courts look at “best interest” factors when determining where a child should live primarily.  These factors help the Court determine which parent is the most appropriate to be the primary physical custodian of the child(ren).  In accordance with O.C.G.A. § 19-9-3(a)(1), there is no presumption that the child should live with the mother or the father.

In many cases, parents are able to agree to the Parenting Plan that governs the visitation between both parents without the Judge having to make a ruling on the issue. The Parenting Plan also details which parent is the primary physical custodian, sole physical custodian, and whether the parties share joint legal custody or not.  If the parties are unable to reach an agreement about child custody and visitation, the Judge will be the one who will make the final decision.

In some cases, when the parties are unable to reach an agreement about child custody issues, the Court will appoint a Guardian ad Litem (GAL).  A Guardian ad Litem is usually an attorney who practices in the field of family law.  It is the GAL’s duty to conduct an independent evaluation of both the parties as well as the child(ren) involved in the case and make a recommendation to the parties and Court about child custody and visitation or parenting time.

There are many possible outcomes for a child custody disputes.  Please contact our office to make an appointment with one of our seasoned Family Law Attorneys to discuss your rights related to any child custody issues you may be facing.

Foliage and Carnage — When Fallen Seeds Result in Broken Legs

Spring is coming.  While that is hard to imagine given we are in the middle of winter, we’ll soon see plants and trees springing to life and coloring our surroundings with flowers and foliage.  But these welcome sights can become hazards if their accumulation on the ground results in unsafe conditions.

For example, an Augusta woman stepped on a seed pod hidden from her view on a step on a set of stairs leading to a tennis court at a club.  The seed pod rolled from under her foot as she transferred her weight causing her to fall and resulting in a broken leg.  Litigation followed and she was ultimately awarded $78,000 in damages by a jury over the club’s objections.  Both the trial and appeal courts agreed that the club did not maintain its property in a manner that the law required.

Businesses that invite the public to its facilities have a duty to inspect the premises and keep them safe from hidden hazards that a person exercising ordinary care would not detect.  The court found that club knew that the magnolia pods posed a fall hazard and had even made a schedule to clean them off of the walkways every morning before it opened to the public.  That schedule had been put into place before this woman fell and broke her leg.  However, the evidence showed that the club employees did not blow the walkways clear that morning.

That the accumulation of seed pods was a natural event is no defense.  Georgia law does not allow a business to point a finger at Mother Nature.  The business still has the duty to clean up and make the premises safe for the public to enter.

The rules for a personal residence can be different depending on whether the person visiting the home is a licensee (usually a social guest) or an invitee (usually someone who you invite into your house to perform work).  If the person is an invitee, you are obligated to exercise ordinary care in keeping the premises and walkways safe, as discussed above.  If the person is a licensee, then the home owner’s level duty to the person can be much lower.

A recent case in Gwinnett County discussed the liability of a home owner whose tree reached out of his lawn onto the sidewalk.  There, a man was walking on the sideway and noticed the tree’s branches overhanging the sidewalk.  He moved off the sidewalk and toward the road slightly as he approached the tree.  Walking by, he felt a sharp pain in his ear and realized that a small branch had entered his ear and pierced his eardrum.  The injury required surgery to repair.  He brought suit for damages against the owner of the land upon which the tree was located.  The court discussed duty owed to a person walking by the property, who they found was a licensee.

If the person is a licensee, the landowner only owes a duty not to “willfully or wantonly” injure the person.  This low level of duty is often described as requiring of the landowner no other duty than not allowing the property to contain “pitfalls or mantraps.”  So a Dr. Evil style lagoon in the front yard containing sharks with laser beams attached to their heads is a no-go as is a hidden hole in the ground or a dark stairway inexplicably leading to a ten foot drop.  The court found the tree was clearly not a hazard rising the level of a pitfall as its branches were visible to the injured man.

The court went on to discuss another defense of the landowners: equal knowledge.  If an injured licensee had equal knowledge of the hazard as the landowner, there is no liability for the landowner.  So there is no liability for the homeowner where social guest fell of a high deck with no railing as the guest observed there was no railing and acknowledged that she could have watched where she was stepped to avoid falling.  In the tree case, the injured man stated he saw the branches and that they were “easy to go around” and the court found he had equal knowledge to that of the land owner.

While there are particular requirements on Georgia property owners imparted by law, the best practice is just to be a conscientiousness business owner or home owner.  Keep your walkways tidy and think about what you could do to make your property safer.  While there might be legal defenses for injuries on your property, a better way to maintain your property is in a manner to keep that injury from ever occurring.

About the Author

Will_Tate_HeadshotWill Tate is a Jasper native practicing law at Thompson, Meier and King, P.C. in Canton, Georgia.  He focuses on commercial and construction litigation, landlord/tenant issues, estate planning and bankruptcy.