“Judicial estoppel is an equitable doctrine that can be invoked by a court at its discretion.”(1) The doctrine seeks “to protect the integrity of the judicial process by prohibiting parties from deliberately changing positions according to the exigencies of the moment.”(2) More specifically, the doctrine “precludes a party from asserting a position in one judicial proceeding after having successfully asserted a contrary position in a prior proceeding.”(3) This article focuses on the assertion and application of judicial estoppel claims in Georgia divorce and child custody proceedings.

In determining whether to apply the doctrine of judicial estoppel in a particular case, a court considers three factors: “[(i)] the party’s later position must be clearly inconsistent with its earlier position; [(ii)] the party must have succeeded in persuading a court to accept the party’s earlier position; absent success in a prior proceeding, a party’s later inconsistent position introduces no risk of inconsistent court determinations, and thus poses little threat to judicial integrity; and [(iii)] whether the party seeking to assert an inconsistent position would derive an unfair advantage or impose an unfair detriment on the opposing party if not estopped.”(4)

Judicial estoppel certainly can apply to divorce and child custody proceedings in Georgia, under appropriate circumstances. For example, in an action to modify child visitation, judicial estoppel barred a parent from moving to set aside the portions of a divorce decree which gave the other parent standing to assert visitation rights. There, the doctrine prevented the moving parent from arguing that the petitioner had no custodial rights to pursue due to the fact that she was not a biological or adoptive parent of the children, after the moving parent had successfully persuaded a judge in the prior divorce action to enter a settlement agreement a) declaring that two minor children were born of the marriage, b) granting her primary physical custody, and c) granting her same-sex spouse detailed visitation rights.(5) In another similar case, a court judicially estopped a biological mother and adoptive father from opposing the biological father’s petition for modification of visitation on grounds that the consent order granting father visitation rights was void, where mother and adoptive father had requested entry of the consent order which a) terminated father’s parental rights, b) granted adoption to the adoptive father, and c) at the same time gave visitation rights to the biological father.(6)

Although judicial estoppel prevents a party from asserting the opposite of a position successfully maintained in another proceeding, the doctrine does not preclude a party from arguing that changed circumstances merit the current position. For example, judicial estoppel did not bar a father who consented to a permanent guardianship for his child from subsequently petitioning to terminate the guardianship and grant custody to him, where the father alleged changed circumstances consisting of resolution of his prior substance abuse problems and his restored parental fitness.(7)

Additionally, because a litigant must have benefitted from an asserted litigation position in order for judicial estoppel to apply, the party can avoid judicial estoppel by showing absence of a benefit obtained from a prior litigation position. For instance, after husband in a divorce action sought to judicially estop wife from maintaining her claims for alimony and equitable division, due to wife’s failure to list those claims in schedules of her bankruptcy petition filed during the pendency of the divorce, wife avoided judicial estoppel by reopening her bankruptcy case and amending her petition to list her alimony and equitable division claims.(8)

(1) Greenlee v. Tideback, A21A0622 (2) (Ga. Ct. App., April 1, 2021) (citation omitted). (2) Id., quoting D'Antignac v. Deere & Co., 342 Ga. App. 771, 773-774(1)(b), 804 S.E.2d 688 (2017). (3) Id. (4) Id. (5) Tideback, supra, at (2). (6) Rimmer v. Tinch, 324 Ga.App. 65, 749 S.E.2d 236, 240(1)(c) (2013). (7) In re M.F., 298 Ga. 138, 143 fn. 11, 780 S.E.2d 291 (2015). (8) Benton v. Benton, 280 Ga. 468, 629 S.E.2d 204, 208 (2006).

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