Law Offices of David P. Schwarz Family Law Lawyer

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Often during the litigation of the a highly contested child custody case the judicial officer has to make very quick and emotionally charged orders in order to effectuate custody results that are correct and effective to all parties involved.  The main objective for the judge is to achieve the best interest of the child standard.  To achieve this result the judge often hears arguments and evidence from both parents including experts who determine the best interest of the child. When the Judge gets his order of change of custody wrong there is a remedy.  The remedy is called a peremptory writ which can be sought by either parent contesting the Judges descision. A party can use a writ if they feel that the Judge based his legal analysis on faulty law.

A recent case in Georgia labeled Dass v Markle illustrated the usage of the peremptory writ in a child custody family law case.  The dispute between the parties Donald Markle and Katrina Dass arose out of the dispute about where the home state of the minor child was established. When there is an interstate child custody dispute and or a move away dispute that arises in the Family Law Courts an error of law is often likely to occur. In the the case of Das v Markle the father left Georgia for New Mexico leaving behind Dasd, the mother the with the child in Georgia. The mother lived in Georgia for another year until 2011 and then Headed to New Mexico and lived their with the father for another year before returning home to Georgia until 2015.  From 2012 to 2015 the child visited with Markle, the father, in New Mexico during the summers. After 2015 to 2016 the child went back to New Mexico and lived with father.  The father then filed a Paternity action in New Mexico to establish who the father and the mother were legally of the child.  In addtion, the New Mexico Court ordered that in order to move the child from New Mexico both parents needed to consent to the move.

The mother, Dass therein filed the writ of habeous Corpus and an emergency custody motion in Georgia Superior Court asking for immediate removal of the child from New Mexico and declaring that Georgia was the home state. The mother needed to show under the peremtory writ law that the Judges in New Mexico did not use “best Interest” standard but used “changed circumstances” standard to determine the custody order.  The Georgia Superior Court granted her writ of habeus corpus.  The father however, filed an appeal in Georgia appealing the granting of the Writ.  The Georgia appeals Court overturned the Superior Court ruling of the return of the child to Georgia.

The appellate Court stated that their was no emergency or error of law that the New Mexico Court did in determining Custody of the minor child.  They went on to state that New Mexico’s descision to have both parties to consent to removal of the child from New Mexico was proper and that Mother could go to New Mexico to litigate the issue of where the child should live.  She didnt need to file a Writ to resolve her custody case.

The use of the peremtory Writ for the exercise of emergency jurisdiction or removal of a child from the custody of another parent is meant for extraordinary situations where the child will be harmed if the writ is not exercised.  In the case of Markle v Dass the Georgia Court determined there was no emergency but only a proper child custody Court order done by a Sister State.