Court upholds denial of visitation for adoptive father of 10-year-old girl

CHIEF JUSTICE LEAH WARD SEARS, who has made her off-the-bench mission to address family law issues, put her passion into a hard-charging dissent Monday.

Accusing her colleagues on the Supreme Court of Georgia of misstating the record, Sears blasted the 5-2 majority that upheld a Cobb County judge’s decision to deny a man any visitation of the girl he adopted after marrying her mother, who initiated the divorce.

“Make no mistake about it: Mark Q. Taylor will never see his 10-year-old daughter … again,” Sears wrote in the first sentence of her 22-page dissent, joined by Presiding Justice Carol W. Hunstein. “And the reason is because he legally adopted her instead of contributing his genetic material to her conception.”

Sears’ dissent highlighted three family law cases that divided the court—overshadowing a closely watched tort law matter the court dispatched with an 11-page unanimous decision.

In another case, the court split 4-3 to hold that a divorcing wife may accept the monetary benefits of a trial court ruling, then press an appeal on what she didn’t get. In Grissom v. Grissom, No. S07F0132, Hunstein wrote that the majority found persuasive the approach taken by other states “in recognition of the realities of divorce and the policy considerations involved.”

To the extent prior Georgia decisions could be read to the contrary, they are overruled, Hunstein wrote.

Joined by Justices P. Harris Hines and Harold D. Melton, Justice George H. Carley warned in dissent that the “sea change in Georgia law” enacted by the majority will take away disgruntled ex-spouses’ disincentives to bring even meritless appeals.

On Monday, the court also split 6-1 over a contempt ruling in another divorce action, Chatfield v. Adkins-Chatfield, No. S07F0197. There, Justice Robert Benham took issue with the majority’s decision upholding a Jones County Superior Court judge’s order that a man pay his ex-wife $1,500 for each day that he failed to pay her $14,593 in insurance proceeds due on a prior order.

That was excessive, wrote Benham, because “there were less draconian options available” and the ruling meant the ex-wife would get “an inappropriate windfall.”

In the case that sparked the chief justice’s dissent, Taylor v. Taylor, No. S07F0358, Mark Taylor adopted Melinda Taylor’s daughter after they married in 2001. Melinda filed for divorce in April 2005, and the parties filed a settlement agreement resolving all of their issues except for the disposition of their residence, according to the majority opinion written by Benham.

According to Mark’s attorney, Michael E. Manely of Marietta, the settlement included an agreement upon joint legal custody, with Melinda having primary physical custody and Mark having standard visitation rights.

But at some point in the litigation things got messier. According to Manely, Melinda started giving Mark a hard time about his visitation, and he filed a contempt motion against her. She sought a change of the visitation schedule and took the daughter to Lorita Whitaker—described by the majority opinion as “the child’s therapist”—who said that Mark should have only supervised visitation.

Following a hearing, the trial court required Mark’s visitation be supervised pending the divorce, according to Benham’s opinion, and Melinda amended her divorce petition to seek termination of Mark’s parental rights.

Cobb Superior Court Judge Kenneth O. Nix gave Melinda full custody, with no visitation rights for Mark.

The state high court’s majority acknowledged that it takes exceptional circumstances to justify denying non-custodial parents any visitation with their child. But it disagreed with Mark, described by his lawyer as a construction contractor, concluding that there was sufficient evidence to support such a ruling here.

Benham’s opinion cited a host of findings by the trial court, including Mark’s “chronic” illegal drug use, sometimes in the presence of children; lack of judgment shown in having the child stay with him in an apartment he shared with a man with whom intoxicated women stayed the night; use of religion to defame Melinda and frighten the child; and “erratic behavior, rage, and violence.”

Benham was joined by Carley, Hines, Melton and Justice Hugh P. Thompson.

Sears, who has touted two-parent families and established a commission to identify steps the judiciary can take to support them, complained that the majority decision painted Mark as a “caricature.”

The depiction of Mark as “a violent drug fiend who makes his young daughter stay with him in ramshackle accommodations frequented by shadowy characters,” she said, “bears no resemblance whatsoever to the actual father involved in this case.”

There was no allegation that Mark had used an illegal drug other than marijuana, wrote Sears, adding it was undisputed that he had not smoked it in almost 16 months by the time of trial. The only evidence that he used the drug in front of children, Sears said, was trial testimony of Melinda’s middle child to the effect that she once saw him in the basement blowing smoke out of his mouth.

As for Mark’s living conditions, wrote Sears, “when Ms. Taylor asked Mr. Taylor to leave the marital home in March of 2005, he did so with nothing more than the clothes on his back and a little cash in his wallet.” So, he crashed on the couch of a friend for a while, and his adoptive daughter stayed in that apartment on two occasions, once when the roommate allowed a friend who had too much to drink to stay overnight rather than driving home drunk. By trial, said Sears, Mark was living in a house where the child would have her own room.

Sears said Mark previously had made some “clearly inappropriate” remarks regarding religion to the girl prior to the institution of supervised visitation, and there was some evidence that Mark left messages for Melinda invoking religion “alternatively exhorting her not to break up their marriage and condemning her if she did.” But Sears said there was nothing in the record to indicate Mark had violated an April 2006 temporary consent order than the parties refrain from talking about scripture with the daughter.

As for Mark’s temper, Sears said Mark was merely “not a perfect person,” pointing to the guardian ad litem’s trial testimony that no one would call Mark “a chronic child abuser.”

Sears challenged how the majority characterized Nix’s ruling as merely denying visitation to Mark, quoting language to the effect that Nix had denied Mark any contact with the girl. Interpreting that to mean that Mark couldn’t so much as send the girl a birthday card, Sears concluded “[t]here is no discernible endpoint to the onerous restrictions the trial court placed on Mr. Taylor’s parental rights.”

That’s at odds with a long line of Georgia appellate rulings that superior court judged can’t terminate parental rights in a divorce case, wrote Sears. To the extent that the guardian ad litem thought a 2005 decision written by Sears undercut that, the guardian got it wrong.

“Until today, the law of Georgia was clear that when a man adopted a child, he became that child’s ‘real’ father,” concluded Sears. “It is imperative for this [Court to] strengthen the bonds between adoptive parents and children whenever possible. The majority opinion instead weakens these bonds, thereby undercutting the law’s historic promotion of family relationships,” she added.

Manely, Mark’s lawyer, said the case was an example of how hard Sears works. “She went to incredible lengths to not just take what we said but to thoroughly research that record to know that she was on firm footing. … If I could say the same for the majority, we would have a different decision,” Manely said.

One of Melinda Taylor’s lawyers, Tyler J. Browning of Browning & Smith in Marietta, said his client was very happy with the result. “Both sides got their day in court,” he said.

SOURCE: Fulton County Daily Report