Georgia law provides two basic methods for appellate review of orders entered by trial courts: direct appeals as of right to an appropriate appellate court; and appeals requiring application to and approval by the appropriate appellate court. Interestingly, child custody orders entered in domestic relations actions straddle both areas, depending on the nature of the case and the nature of the errors complained of on appeal. This article discusses the domestic relations cases and issues which may be appealed as of right and those which require appellate application and approval.

By statute, Georgia permits appeals to be taken to its Supreme Court and Court of Appeals, as of right, from specified judgments and orders of lower courts, including “[a]ll final judgments, that is to say, where the case is no longer pending in the court below…” and “[a]ll judgments or orders in child custody cases awarding, refusing to change, or modifying child custody or holding or declining to hold persons in contempt of such child custody judgment or orders…”(1) A final judgment in an adoption case is directly appealable.(2)

Not all final judgments and judgments in child custody cases may be appealed as of right. The Georgia Code specifies certain judgments and orders which require appeals to be taken “by application in the nature of a petition enumerating the errors to be urged on appeal and stating why the appellate court has jurisdiction.”(3) No appeal of those judgments and orders will be heard unless an appellate court grants the application for discretionary review.(4)

The types of cases requiring applications for discretionary appeal include “[a]ppeals from judgments or orders in divorce, alimony, and other domestic relations cases including, but not limited to, granting or refusing a divorce or temporary or permanent alimony or holding or declining to hold persons in contempt of such alimony judgment or orders” and “[a]ppeals from orders terminating parental rights.”(5) Georgia law broadly defines domestic relations cases to include “any action for divorce, alimony, equitable division of assets and liabilities, child custody, child support, legitimation, annulment, determination of paternity, termination of parental rights in connection with an adoption proceeding filed in a superior court, any contempt proceeding relating to enforcement of a decree or order, a petition in respect to modification of a decree or order, an action on a foreign judgment based on alimony or child support, and adoption.”(6) Thus, for example, appeal of an order granting or denying legitimation must be pursued by application for discretionary review.(7)

It seemed clear enough that the statutory carve-out of final judgments and orders in domestic relations cases (from direct appeals as of right) required applications for discretionary review of final judgments and interlocutory orders for, and contempt rulings involving, child support, alimony, and equitable division of marital assets. Nonetheless, uncertainty arose as to the correct procedure for appealing child custody rulings made as part of other domestic relations actions. A question remained whether a child custody ruling made in an action for divorce, legitimation, or some other domestic relations case, constituted a judgment or order in a child custody case that could be directly appealed, or whether it instead comprised a judgment/order in a domestic relations action which required an application for discretionary review.

The Supreme Court of Georgia applied two rules to answer that question. First, addressing divorce actions in which the confusion regarding appellate procedure most commonly occurred, the Court deemed child custody rulings in a divorce case as ancillary to the divorce action, such that the appeal of such rulings requires an application for discretionary review, holding: “where … child custody issues are ancillary to a divorce action, the determination of child custody does not transform the case into a ‘child custody case’ … for purposes of determining the appropriate method for appealing a child custody order.”(8) Second, the Court held that the proper appellate procedure to employ depends upon the issue raised on appeal, even if the order or judgment challenged on appeal falls within the types directly appealable by statute and was entered in a child custody case.(9) Thus, for example, a claim of error regarding a child support ruling alone – even if made in a child custody modification action – requires an application for discretionary review.(10)

Curiously, in a recent opinion, the Court of Appeals of Georgia may have contradicted one of the above rules. On a direct appeal of juvenile court orders finding a mother’s children to be dependent and awarding child custody, and of separate orders granting a biological fathers’ petitions for legitimation and temporary custody, the Court of Appeals affirmed the mother’s right of direct appeal, holding that “a party seeking to challenge a child custody order entered in a legitimation case may file a direct appeal.”(11) The Court appeared to focus only on the issue-raised-on-appeal rule, while ignoring the rule relating to ancillary custody rulings made in domestic relations cases requiring applications for discretionary appeal. Although the Georgia Supreme Court has not yet explicitly addressed whether custody claims raised in legitimation actions should be deemed ancillary to those legitimation actions, and thus not directly appealable, the Supreme Court may see no logical distinction between the two types of cases if and when it has an opportunity to consider the matter.

In any event, where a child custody ruling in a child custody case is directly appealable, the appellant can file a direct appeal even if the ruling occurred in a temporary order. The appellant does not have to wait for entry of a final judgment or comply with statutory requirements otherwise applying to appeals of interlocutory orders.(12)

Lastly, if the type of case and issues appealed fall within those to which a right of direct appeal applies, the appellate court will consider any additional errors raised in the appeal which otherwise would have required an application for discretionary review.(13)

(1) O.C.G.A. § 5-6-34(a)(1) and (11). (2) See Sauls v. Atchison, 326 Ga.App. 301, 303-304(1), 756 S.E.2d 577 (2014). (3) O.C.G.A. § 5-6-35(b). (4) See O.C.G.A. § 5-6-35(f) and (g). (5) O.C.G.A. § 5-6-35(a)(2) and (12). (6) O.C.G.A. § 19-9-1(a). (7) See Numanovic v. Jones, 321 Ga. App. 763, 764, 743 S.E.2d 450 (2013); and Brown v. Williams, 174 Ga.App. 604, 332 S.E.2d 48 (1985). (8) Hoover v. Hoover, 295 Ga. 132, 134(1), 757 S.E.2d 838 (2014). See also Todd v. Todd, 287 Ga. 250, 251-252(1), 703 S.E.2d 597 (2010). (9) Voyles v. Voyles, 301 Ga. 44, 799 S.E.2d 160 (2017). (10) Voyles, supra, citing Singh v. Hammond, 292 Ga. 579, 740 S.E.2d 126 (2013). (11) In re N.C., A21A1429, *11(1) (Ga. Ct. App., March 8, 2022). (12) Lacy v. Lacy, 320 Ga. App. 739, 742(3), 740 S.E.2d 695 (2013); and Cohen v. Cohen, 300 Ga. App. 7, 8(1), 684 S.E.2d 94 (2009). (13) O.C.G.A. § 5-6-34(d). See also Hackett v. Stapleton, No. A22D0035 (Ga. Ct. App., September 27, 2021).