Georgia: Family Law

The following sections are included because it may often be the case that a victim of an online privacy invasion has recently divorced the perpetrator spouse, or is considering a divorce or possibly a separation. Although evidence of misconduct is not appropriate in a divorce proceeding, the publication of sex photos/videos may well be considered in child custody proceedings for determining the “best interests of the child,” and considerations of domestic violence are appropriate when determining spousal support.

  1. Divorce

    1. Introduction

      Evidence of misconduct could be relevant in a divorce proceeding in Georgia, so a WMC victim may try to bring in evidence regarding any actions by the defendant including, but not limited to, threats to publish private intimate images without the victim’s consent, and other improper behavior on the part of the victim’s spouse/former spouse. Such evidence may also be used to establish grounds for divorce, especially behavior that suggests a threat to life or health.

    2. Text of Statute(s)

      Ga. Code Ann. § 19-5-3 – Grounds for total divorce

      Ga. Code Ann. § 19-5-5 – Petition; contents and verification; demand for detailed statement

      Ga. Code Ann. § 19-5-2 – Residence requirements; venue

    3. Cases

      Research is ongoing. My search of Georgia cases citing these statutes did not reveal any cases that are factually relevant or analogous to WMC’s target situations.

    4. Practice Pointers

      Evidence of harassment or abuse may be considered by the court in establishing grounds for divorce. If the victim is seeking divorce caused by abuse, collect as much information as possible that shows cruel treatment, including the infliction of pain, bodily or mental that creates apprehension of danger to life, limb, or health. Although we have not found examples of online or digital harassment being cited as the reason for divorce, the statute is broadly worded and such digital harassment may be sufficient.

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  2. Child Custody

    1. Introduction

      If the victim of the nonconsensual online publication of intimate photos is involved in a child custody dispute, he or she may use evidence of this type of misconduct to establish abuse or harassment by his or her former spouse or significant other. When determining child custody, the court’s primary consideration is to decide what is in the “best interest(s) of the child.”1

    2. Text of Statute

      Georgia Code Ann. § 19-9-3 - Discretion of judge in custody disputes

    3. Cases

      1. Welch v. Welch, 569 S.E.2d 134 (Ga. 2004)
        • Procedural Posture: Wife appealed from the lower court’s decision granting father (her ex-husband) primary custody of the parties’ daughter.
        • Law: Custody laws
        • Facts: The parties were married with two daughters and sought divorce. After hearing testimony from both parties on the issue of custody, the court found both parents “to be attentive, concerned, and caring, with either able to provide the children with a high level of care,” while finding joint custody impractical due to the distance between the parties’ homes. Despite evidence of the father previously having engaged in violent acts toward the wife, the court granted primary custody to the husband. The court found that the children’s best interests were to stay with the father where they had many friends and could continue as well known members of the church congregation. The wife appealed.
        • Outcome: The court affirmed the decision granting the father primary legal custody. The mother contended that the court erred in failing to take into consideration the past acts of violence. However, the appellate court found that the trial court did not abuse its discretion when the husband accepted responsibility and remorse for those acts, had said he was turning his life around, and the lack of evidence of ongoing violent acts.
      2. Baca v. Baca, 568 S.E.2d 746 (Ga. Ct. App. 2004)
        • Procedural Posture: Husband appealed from the lower court’s decision granting wife custody of children in hearing on family violence protective order.
        • Law: Custody laws and protective orders for family violence.
        • Facts: The parties were married with two daughters and the wife sought a six-month protective order after alleged physical and verbal abuse. Specifically, the wife alleged that the husband kicked her in the leg and threatened to kill her. Meanwhile, the husband alleged that his wife also engaged in misconduct, including alcoholism, drug abuse, theft, perjury, and violence. The wife also allegedly pointed a shotgun at him and their two children. The trial court found in favor of the wife and awarded temporary custody of the couple’s two children. The husband appealed, asserting that the trial court erred in finding the wife’s drug abuse and violence irrelevant.
        • Outcome: The appellate court affirmed the decision granting the mother temporary custody. The court found that the evidence was conflicting and that the husband had been abusive toward his wife. Therefore, the appellate court found that it could not say that the trial court erred in concluding the best interests of the child was to remain with her mother.
        • Special Notes: The court in this case indicated that it was not aware of any prior cases addressing the standard for an award of temporary custody in connection with a protective order. The court clearly establishes that, like typical child custody hearings, “the best interest of the child” is the test in the context of a protective order.
    4. Practice Pointers

      As the numerous statutory factors and above cases demonstrate, the decision of how to allocate child custody is an extremely fact-specific process. Practitioners should closely evaluate each factor and tailor arguments to each to persuade the court about the “best interests of the child.”

    1. Ga. Code Ann. § 19-9-3.
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