An unfortunate byproduct of court backlogs and burgeoning litigiousness in the modern era is an increasingly long delay between the commencement of a case and its trial. Those delays seem just as prevalent in family matters, including child custody disputes. Yet child custody cases present a unique problem which other types of litigation lack. Specifically, more and more, a custody dispute involving a teenager has the potential to drag on long enough for the child to turn 18 either before a final hearing occurs or during the pendency of an appeal of the trial court’s judgment. This article explores the impact on a custody case, and on the appeal of a custody ruling, when the subject child has turned 18.
Under Georgia law, the doctrine of mootness provides that “[w]hen the resolution of a case would be tantamount to the determination of an abstract question not arising upon existing facts or rights, then that case is moot. When the remedy sought in litigation no longer benefits the party seeking it, the case is moot and must be dismissed.”(1)
A child custody action becomes moot if and when the subject minor child turns 18. The case becomes moot because a child reaches the age of legal majority at 18 years, and at that point is no longer in the custody or control of either parent and no longer subject to a court’s jurisdiction on custody issues.(2)
By statute, an appeal cannot be dismissed except for certain specified reasons, one of which is when the questions presented on appeal have become moot.(3) Mootness of a custody dispute accordingly will compel dismissal of any pending appeal of a custody order, even if the order on appeal was issued prior to the matter growing moot.(4)
Georgia’s appellate courts claim to have adopted a narrow exception to the doctrine of mootness “when the issue is capable of repetition and yet evades review.”(5) Our appellate courts seemingly also will consider a rule adopted in other states which permits them to decide an appeal in a moot case where the case contains an issue of significant public concern or an issue that might avert future litigation.(6) The courts in those states find justification for deciding issues raised in moot cases when (a) the public interest will be hurt if the question is not immediately decided; (b) the matter involved is likely to recur frequently; (c) it involves a duty of government or government's relationship with its citizens; and (d) the same difficulty that prevented the appeal from being heard in time is likely to again prevent a decision.(7)
Problematically though, the exceptions to the doctrine of mootness seemingly apply to child custody cases more in theory than in practice. No matter how direly in need of clarification some of the laws pertaining to child custody and visitation issues seem, this author knows of few, if any, situations where an appellate court determined questions on appeal after the case grew moot because the child reached the age of majority.
(1) McAlister v. Clifton, No. S22A0144, *3 (Ga., December 14, 2021), citing In the Interest of M. F., 305 Ga. 820, 828 S.E.2d 350 (2019). (2) Francis-Rolle v. Harvey, 309 Ga.App. 491, 710 S.E.2d 659 (2011). See also McAlister, supra. (3) O.C.G.A. § 5-6-48(b)(3). (4) McAlister, supra; and Higdon v. Higdon, 321 Ga.App. 260, 739 S.E.2d 498, 503(2) (2013). (5) Hopkins v. Hamby Corp., 273 Ga. 19, 538 S.E.2d 37 (2000). (6) Id. (7) Id.