In contested actions involving child custody, judges often award temporary relief to the parties, pending final trial, after hearing limited evidence at interlocutory hearings. At final trials in such cases, judges can rely on the evidence from their temporary hearings, but only if they expressly notified the parties of their intent to rely on that evidence. Reliance at trial on evidence from a temporary hearing to support a permanent child custody award, without prior notice to the parties, creates reversible error. But why does the validity of reliance turn on notice, and what are the implications of that distinction? This article addresses those subjects.

The Supreme Court of Georgia established the rule concerning reliance on temporary hearing evidence in 2010, in the case of Pace v. Pace.(1) Pace was a divorce action in which the trial court awarded temporary physical custody of a child to the husband, after a temporary hearing, and then awarded permanent physical custody to the husband at trial. On appeal, the Georgia Supreme Court reversed the custody judgment because the trial court had relied substantially on testimony adduced at the temporary hearing in making its determination on permanent custody, without having notified the parties that it would consider such testimony in making its decision.(2)

In holding that, absent express notice to the parties, it is error for a trial court to rely on evidence from the temporary hearing in making its final custody determination, the Court in Pace discussed at some length the differences between temporary custody awards and permanent awards, as follows:

It is clear, however, that an award of temporary custody ‘differ[s] in its nature and purpose from an award of permanent custody.’ The temporary award is intended to create an interim arrangement that serves ‘[t]he best interests of the child pending adjudication of the rights of the mother and father,’ whereas an award of permanent custody constitutes ‘a final adjudication of the rights of the parties.’

Because of its interim nature and the need to expedite the temporary custody determination to minimize disruption to the children involved, ‘the temporary order is not governed by the same rules of law as the permanent custody [order].’ … Temporary hearings are governed by Uniform Superior Court Rule 24.5, which provides that ... [only] the parties involved and one additional witness for each side may give oral testimony. Additional witnesses must testify by deposition or affidavit unless otherwise ordered by the court....

In addition, ‘[e]xcept by leave of court, the minor child/children of the parties shall not be permitted to give oral testimony at temporary hearings.’ By contrast, such evidentiary rules do not apply at the final hearing… As a result, the nature and quality of the evidence presented at a temporary hearing is likely to be different than that which is ultimately presented at the final hearing, and parties should ordinarily expect that only that evidence which their opponent sees fit to offer at the final, more formal hearing will be relied on to support the permanent custody award.(3)

The Court in Pace offered no explanation why a judge’s notice of intent to rely on less formal, limited temporary hearing evidence to support a permanent custody decision suffices, while reliance on that evidence without prior notice to the parties creates reversible error. The Court seemingly took for granted the necessity and logic of its holding. Presumably, it viewed the matter as one of procedural due process, believing that notice gives the parties the means to fully address and combat any inadequacies in the evidence from the temporary hearing. That conclusion might be true, but it seemingly places a heavy onus on the parties’ attorneys to fulfill it.

In an action to modify a prior child custody order, a judge can make a temporary custody award without finding changed conditions or circumstances affecting the child (a finding required for issuance of a permanent order modifying child custody).(4) At the final hearing in a modification action, the attorneys need to remember, and prepare to introduce evidence on, the issue of changed conditions and circumstances affecting the minor child. The party who suffered an adverse temporary custody ruling also may want to remind the court of the limitations on the evidence presented at the temporary hearing and of the absence of proof of changes circumstances supporting the temporary custody order.

At a final hearing in a custody case, the attorneys must remain diligent to prevent the trial court’s consideration of inadmissible evidence considered at a temporary hearing. Appellate case law has held that, because Uniform Superior Court Rule 24.5 applies only to temporary hearings, application of that rule to a final hearing impermissibly restricts a party’s right of cross-examination. Reversible error accordingly has resulted from a judge supporting a final custody decision with testimonial evidence from affidavits.(5) Nonetheless, when a trial court has notified the parties of its intent to consider temporary hearing evidence at trial, a party likely will lose the right to appeal a court’s erroneous reliance on affidavit testimony to reach its final custody decision, unless the party makes a timely objection to the court’s consideration of the affidavits submitted at the temporary hearing.(6)

Likewise, while governing law should require a trial court to base its final custody decision on some evidence other than inadmissible hearsay statements, the parties’ attorneys bear the onus of policing that requirement.(7) After all, hearsay evidence remains legal and admissible absent proper objection.(8)

Properly objecting to and combating hearsay at a final custody hearing seems especially important concerning children’s out of court statements. Although minor children cannot testify at a temporary hearing without leave of court, they can be questioned by the judge in chambers, and the judge can relax the strict rules of evidence so as to consider the children’s statements in fashioning a temporary custody award in their best interests.(9) Appellate cases have held that, if the children’s statements to the judge were not transcribed, the judge could not use those statements to support a final custody decision.(10) The law seems less clear whether a judge can rely at trial on transcribed children’s statements, even over objection. In all probability, absent objection, a judge could rely at trial on a prior interview with a child whether transcribed or not. And even with a proper objection to the court’s consideration of a child’s interview, if the judge has indicated an intent to rely at trial on temporary hearing evidence, an attorney may need to call the child as a witness at trial in order to counter the absence of prior cross-examination during the in-chambers interview.

At least where no party lodges an objection, a trial court which notified the parties of its intent to rely on evidence at a temporary hearing seemingly may refuse to hear redundant testimony at trial from a witness who testified at a temporary hearing.(11) But testimony at a final custody hearing rarely should be redundant of a witness’s temporary hearing testimony, given the more relaxed rules of evidence at a temporary hearing and the more limited focus of the court’s inquiry on a temporary custody decision. In particular, the party against whom a witness testified at the temporary hearing may want to subpoena that witness for trial and question him/her beyond the scope of the temporary hearing testimony. Through proper questions and objections, the attorneys at trial will bear the obligation to ensure that the hearsay rules and other rules of evidence are enforced and that the witness’s testimony cures any deficiencies in his/her limited testimony at the temporary hearing.

(1) Pace v. Pace, 287 Ga. 899, 700 S.E.2d 571 (2010). (2) Id., 287 Ga. at 900-901. (3) Id., citations omitted. (4) McManus v. Johnson, 356 Ga.App. 880, 883m 849 S.E.2d 708 (2020). (5) Camp v. Camp, 213 Ga. 66-70(2), 97 S.E.2d 125 (1957); Carroll v. Carroll, 307 Ga.App. 143, 704 S.E.2d 450, 450-451 (2011); and Mink v. Mink, 195 Ga.App. 760, 761(1), 395 S.E.2d 237 (1990). (6) Camp, supra, 213 Ga. at 69(2). (7) See Woodruff v. Woodruff, 272 Ga. 485, 486-488(1), 531 S.E.2d 714 (2000). (8) O.C.G.A. § 24-8-802. (9) Frank v. Lake, 266 Ga.App. 60, 62(1), 596 S.E.2d 223 (2004). (10) Id, citing Kohler v. Kromer, 234 Ga. 117, 118-119, 214 S.E.2d 551 (1975). (11) Jewell v. McGinnis, 333 Ga. App. 108, 110(2), 775 S.E.2d 539 (2015). See also Simmons v. Wilson, 343 Ga.App. 857, 806 S.E.2d 267 (2017).

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