It is error for a trial court to rely on evidence from the temporary hearing in making its final custody determination absent express notice to the parties. Pace v. Pace, 287 Ga. 899 (2010); Vaughn v. Davis, S11A1950, decided January 9, 2012.
In the Vaughn case, the Supreme Court reversed the trial court for denying the Mother’s motion for new trial following the trial Court’s entry of a final order granting primary physical custody of the children to the former Husband by relying on evidence adduced at a temporary hearing. In fact, the trial court’s final order explicitly established that it relied on evidence from the temporary hearing and that neither party was notified of this reliance in advance. In other words, the Court must consider all of the facts and testimony regarding custody at a final trial and not simply “rubber stamp” its prior decision.
The moral of the ruling is to prepare your case and not assume you will win at a final trial just because you did at a temporary hearing.