FAMILY LAW
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Health
Insurance for Children.
Legal Terms often encountered in Georgia Family Law.
Health
Insurance for Children
Regardless
of the adults around them, children
should have access to health insurance.
A program enacted by the Federal Government called CHIP
[Children’s Health Insurance Program] is implemented by each State. This provides for free or low-cost health insurance for
children ONLY. Covered
under the program are immunizations, prescriptions,
check-ups, vision, dental care and hearing exams,
as well as hospital visits and more serious conditions.
Each
state implements this under its own operating rules so it does
vary from state to state.
Call toll free to 1-877-KIDS-NOW (1-877-543-7669) and the
phone system will automatically
connect you with
the appropriate agency in your state. Or you can get to
the CHIP link from the Social Security Administration’s website
at http://www.ssa.gov/kids.
Legal
Terms often encountered in Georgia Family Law
By
Lynn M. Swank
These
terms are organized alphabetically for convenience.
The definitions are given as they relate to family law
practice in Georgia.
There are other, inconsistent uses for these words in other
aspects of law.
A
vinculo matrimonii – formal language in a divorce petition
which describes “a complete divorce.”
Acknowledgment
of Service - a document signed by a Defendant, witnessed by
a Notary Public, to
indicate to the Court that he or she has received a copy of the
Petition and does not require the more formal procedure of service
by a Sheriff’s Deputy.
The Acknowledgement of Service will generally also waive
service of the “Summons” and “Process.”
Adoption
– A proceeding by which one adult person (at a minimum more
than ten years older than the other) takes parental responsibility
for another person (usually a minor).
Adoptions, unlike other court actions, are ‘sealed’ and
not open for public inspection.
The act of adoption completes the severance of legal
relationship of the child (or person) with his or her former
family and creates the parent-child relationship in the adopted
one.
Affidavit
– A written statement made under oath (or affirmed if the
party does not take oaths due to some religious or philosophical
objection) in the presence of a Notary Public.
Amendment
- A document
which is filed with the Court after the original complaint or
answer which adds to or changes that original in some manner.
An amendment can raise entirely new issues inside a pending
case.
Appeal
- The process
of requesting that another Court in the hierarchy review the decision
of the trial court to determine if errors occurred or the ruling
was improper.
Answer
– The written response a Defendant should make to a civil
lawsuit. If
not made by the appropriate time, the Defendant could lose by
default.
Biological
father - The birth father of a child.
This man must take some further action to become the child’s
legal father. In
adoptions this man is called ‘the biological father who is not
the legal father.’
Not having legal status, he is not entitled to the same
degree of participation in an adoption that a ‘legal father’ would
have.
CASA
– Child advocacy program in development in Georgia.
Certified
Copy - A copy
of a Court paper imprinted with the seal of the Court and attested
by a Clerk to show that the copy is an accurate and complete reproduction
of the original which is on file at the Court.
Complaint
– The pleading in a case which starts a civil lawsuit.
Also called a “petition”.
It states the reasons and facts on which the Plaintiff/Petitioner
relies as well as the relief which is sought.
Conformed
Copy: A word
for word copy of a document on which the signatures are marked
but are not original signatures.
Typically the symbol /s/ is used to indicate that the signature
is not an original.
Consent
Agreement – A contract which settles the issues between the
parties to a lawsuit so that a Judge can sign a final Order and
make the agreement a ruling of the Court without having a trial.
Consent
to Try – In certain cases, such as divorce, there are time
intervals which must elapse before the Court can take action to
finalize the case.
A party can, in many of these situations, sign a document
which instructs the Court that he or she does not require that
the Court wait out the full interval, but may proceed at a sooner
date.
Contempt
– In a legal sense,
intentional disobedience to the terms of a Court Order.
If a person has disobeyed an Order, the Court has the option
of placing that individual in jail for a period of time, or to
make other requirements so that compliance will occur.
Often in divorce situations,
a person who is not receiving child support, getting full
visitation, or is having other problems with the other party arising
out of a Court Order will ask that the Court find the non-complying
party in contempt of that Order.
Counterclaim
- In a civil
case, the Defendant may have claims against the Plaintiff or reasons
why the Plaintiff should not receive everything he wanted to receive.
A counterclaim must be filed when the Answer is filed and
generally cannot be filed later.
If a Counterclaim is made in a case,
then even if the Plaintiff dismisses the Complaint,
the Counterclaim will remain active to be tried.
Custodian
- A parent or any other person who has physical custody of
the child in a domestic action,
or a person who has possession of property in other civil
cases. A custodian
has responsibilities for the safekeeping of the person or the
property even in the absence of a contract or agreement.
Default
– When a Defendant
fails to respond to a lawsuit in the appropriate amount of time,
then the Court can grant the Plaintiff the relief which can be
proven to be needed.
The Defendant does not automatically win everything which
was sought in the lawsuit, however, there would be limits after
that point on what the Defendant can do to stop a judgment.
HOWEVER, in
divorce cases there is no ‘default.’
A judge still has to determine fair and equitable in domestic
situations regardless of what the Plaintiff asked to receive.
Defendant
- The person against
whom an action is brought.
A lawsuit may have several defendants and several plaintiffs,
depending on how many persons or ‘entities’ are involved
in the dispute.
Deposition
– testimony taken in an office environment from a party or
witness. This testimony
is under oath, transcribed by a Court Reporter, for use at a subsequent
trial or hearing. Unlike
an affidavit (sworn written statement) a deposition may be used
during trial in many situations because the witness could be cross-examined
by each attorney at the time the deposition was taken.
DFCS
- The Department
of Family and Childrens’ Service, a Division of the Department
of Human Resources.
Each County has a DFCS office which functions for protection
of deprived, neglected and abused children,
and to provide services to assist families in need.
Programs for assistance include supervision of Medicaid,
Food Stamps, and WIC.
Divorce
‘et mensa et thoro” – language in a divorce which describes
legal separation but not final divorce.
It is a divorce from bed and board but does not completely
dissolve the marriage.
Domesticate
– The procedure to bring an Order entered by a court in another
state to a Court in Georgia and asking that the Georgia Court
accept and act upon it.
Family
Violence Petition - An
emergency request for relief where a family member (usually a
spouse) swears to the Court that there has been abuse or violence
such that a protective Order is needed.
If the Judge is convinced that the Temporary Protective
Order (“TPO”) is needed then relief such as exclusive use of the
marital home, child
support and custody, and
restriction on communications will be put in place for a short
interval until a hearing can be held.
If, after the hearing, the Judge finds that family violence
has occurred, then the Order can be put in place for a six month
period.
Final
Judgment and Decree of Divorce – The Order signed by a Judge
which finalizes a divorce action.
Until this Order has been entered the divorce is not final.
General
Execution Docket - A
recording index maintained in the Office of the Clerk of each
Superior Court which lists the names of persons against whom judgments
have been taken and information about the holder of the Judgment.
Recorded information in this docket ‘clouds’ or impairs
the title to real property owned by the Debtor in that county
so that it cannot be sold or conveyed lawfully without the judgment
being fully paid.
Guardian
- A legal parent
is the natural guardian of his or
her child, however
sometimes a parent loses that authority or voluntarily transfers
it to someone else.
The guardian may be appointed by Last Will and Testament
of a deceased parent or by action of a Probate Court.
Custody and Guardianship are not the same thing.
Guardianship may also involve the care of an adult who
is not competent to handle his or her own affairs.
A guardian may be required to take care of another person
or of that person’s money and property.
Guardian
ad Litem - A
person--usually an attorney--appointed by the Court to represent
a child or an incompetent person in a specific pending Court action.
This “GAL” speaks for the minor or incompetent person in
all related Court proceedings and protects that person’s best
interests.
Hearing
- A Court proceeding
which deals with certain issues but not ALL of the dispute.
Hearings typically do not involve juries.
The final resolution of the case might be by ‘bench trial’
[judge deciding the issues] or a ‘jury trial’ if not first settled
by the parties.
In
forma pauperis – Latin terms for proceeding in a civil case
as an indigent. A
person who is not able to pay the court costs and fees may file
a statement of indigency and qualify to have the fees waived.
Income
Deduction Order - A
Court Order directing that child support payments be withheld
by the employer from the wages of the parent who is obligated
to pay child support.
The Employer then sends the child support payment to the
receiving parent at the same time that payroll is distributed.
Due to revisions in the laws,
in all current cases where child support is Ordered,
it must be paid by Income Deduction Order unless that right
is waived by the recipient or use of the Order is impossible.
Interrogatories
- Questions submitted
by one party to another in written form.
Answers under oath must be provided within a specified
period after the time of service.
It is a method to gain information about the facts of the
lawsuit and obtain proof to be used in the case.
Judgment
- The final Order
which concludes a civil lawsuit.
Jurisdiction
– Existence of ‘jurisdiction’ is a fundamental requirement for
a Court to take action which is legally effective.
If a lawsuit is brought in the wrong place or the wrong
Court then the Plaintiff may get an Order but it would not be
enforceable if challenged.
Each Court in the American system has specific types of
cases which it can hear.
Defendants have rights under the United States and State
Constitutions to be sued in places in which they live or have
their businesses (or in some instances where the event giving
rise to the lawsuit has occurred).
Merely finding a defendant passing through or visiting
a place would typically not give a Court in that place the jurisdiction
to hear a civil case against him.
Legal
Custody – When
the legal parents of a child no longer wish to live together,
whether a divorce is involved or not,
some legal determination of authority must occur.
In Georgia there are several types of Court Ordered custody:
Joint legal custody leaves both parents with full authority
to make determinations about the child’s medical care, schooling,
religion and other important issues.
When sole custody is granted to one parent, the other no
longer has such decision making authority, and will have only
those rights granted by their Settlement contract or the Final
Decree of Divorce.
Physical custody
can be divided between parents in a joint time share manner or
a sole custody with visitation in the other.
The decision as to physical custody does not have to parallel
legal custody.
All custody decisions between parties are to be made in
the ‘best interests of the child.’
In Georgia a child
has the right to select the parent who will have custody of him
or her when the child has reached the age of 14 years.
This decision will be controlling on a Court until the
parent who is chosen is unfit to act as the custodial parent.
Recent changes in the law have given a child who reaches
the age of 11 years the right to express a preference as to the
choice of custodial parent, which must be considered by the Court
but is not controlling.
Legal
father - A man
who was married to the Mother of the child at the time of its
birth; a man who married the Mother after the child was born and
then completed an affidavit of paternity stating or acknowledging
that the child is his biological and legal child,
a man who has legitimated the child through Court proceedings,
or a man who has been determined to be the father through
a paternity action brought against him.
Legal
Separation – a Court
action which does not result in final dissolution of the marriage
but merely Orders certain responsibilities between the parties
while they live separate and apart.
Legitimation
- A legal action brought by a Father to establish his legal rights
concerning his child who was "born out of wedlock".
Lien
– A notice of
claim or restriction on the title to an asset.
A security deed for a mortgage is a lien.
Unpaid county taxes are liens.
At a certain point, if notice has been given Internal Revenue
and State Departments of Revenue can file liens for unpaid taxes.
Unpaid Judgments are liens.
Using the property for collateral for a loan may create
a lien which can be recorded on public record if the holder so
chooses. In some
cases, such as motor vehicle liens, the lienholder may retain
possession of the original title certificate until paid.
Lis
Pendens – A document filed with the Clerk of Superior Court
of the County in which real property is located so that during
a civil proceeding (including a divorce) which deals with that
property, the real
estate cannot be conveyed or sold to some other person who is
not aware of the dispute.
Marital
Property – Assets (money, real estate, cash, stocks, bonds,
household goods, tools, vehicles, business assets, and any other
tangible property) acquired during the marriage, except for inheritances
and gifts. This
property is subject to division by the Court in a fair and ‘equitable’
manner – which may not be equal.
Property owned by either party before the marriage commenced
is “pre-marital” property and not subject to division.
The determination of what is ‘marital property’ does not
stop with property held at the filing of the petition but will
include items acquired right up to the date of the Final Judgment
and Decree of Divorce.
Mediation
– An alternative method of resolving disputes which is growing
in use in Georgia Courts.
Trained Mediators work with the parties and their legal
counsel to seek compromises to settle claims.
In many Counties mediation is required in all newly filed
civil cases.
Modification
– An action after the conclusion of an original court proceeding
which seeks to have some part of the final Order changed,
often used in recalculating child support, changing custody,
or reallocating visitation time.
Moral
Turpitude - An act or behavior that gravely violates the accepted
moral standards of the community, such as
perjury, fraud, rape, and murder.
Motion
– a request filed by either party during a pending civil case
to have the Court take some action before the final trial occurs.
No-Fault
Divorce - Common
way to refer to the ground for divorce which is more formally
called “irretrievably broken.”
Divorce on this basis is ‘between the parties’ and not
one “from” the other.
Non-Custodial
Parent - The parent who does not have physical custody of
a child (although there might be joint legal custody or extensive
visitation rights).
Notice
to Produce – A written request from one party to another in
a civil lawsuit to gain access, inspection and copies of documents
and tangible things.
It is a method to locate information about the facts of
the lawsuit and obtain proof to be used in the case.
Notice
to Produce – third parties - Written
request to persons not involved in the lawsuit that they provide
materials relevant to the action.
Official
Code of Georgia – the statutes of Georgia.
O.C.G.A. -
Official Code of Georgia Annotated is compilation of Georgia
law which contains references to appellate cases and opinions
of the Attorney General
which have involved those statutes.
Objection
- A
Party’s statement of a legal reason why the Court should not hear
evidence or testimony, or any other aspect of a proceeding.
Order
- A decision signed by a Judge which determines facts as proven
to the Court and specifies the relief granted (or denied) in the
case.
Party
– the persons who are named as Plaintiffs or Defendants in a lawsuit.
Paternity
Action – A legal action brought by a child’s mother or other
interested party (such as Department of Family and Children Services)
to establish that a man is the biological father of the child.
This action sets legal responsibilities of that man for
child support when the biological issue has been proven.
Pauper's
affidavit – the statement of a party which accompanies a request
to be determined to be indigent for purposes of a specific lawsuit
so that Court costs will be waived.
Pending
Case - A Court
case where no final order has been entered.
Petition
– The pleading in a case which starts a civil lawsuit.
Also called a “complaint”.
It states the reasons and facts on which the Plaintiff/Petitioner
relies as well as the relief which is sought.
Petitioner
- The person who starts a case by filing a petition with the
Court -- may in some
cases be listed as "Plaintiff."
Physical
Custody – When speaking of children,
the person having physical custody usually has the child
living in his or her household.
When speaking of assets,
the custodian is the person who has control of the physical
property.
Plaintiff
- A person who files
the initial petition to start a case. Sometimes called Petitioner.
Pro
se -
Latin term.
Description of a person who files a court action and chooses
to represent himself.
A ‘pro se’ party does not have an attorney.
Proposed
Order - An document
which has been suggested by one or both parties to a lawsuit as
an Order to be entered but which has not yet been signed by the
Judge.
Respondent
– Another term for the person against whom a Petition or Motion
has been filed. This
person may in some cases be listed as the Defendant.
Restraining
Order – A Court Order which requires that a person do, or
refrain from doing, certain
actions until another Court Order is entered which changes those
rules.
Rule
Nisi - A hearing specially scheduled
by the Court to determine any issue on a temporary basis.
Separation
– In the context of a marriage,
when the spouses no longer share the same living quarters
or bedroom.
Separation
Agreement – In a divorce action,
most cases are decided by contract negotiated between the
parties which decide all issues, including (but of course not
limited to) child custody, visitation, support, alimony, division
of debts and distribution of property.
Service
– the manner in which a party receives the pleadings in a
case. The complaint
or Petition is served by a Sheriff’s Deputy or service is acknowledged
by the party. All
pleadings after that one are served by delivery in person or by
mail.
Sheriff's
Entry of Service – A document which is signed by the Sheriff’s
Deputy which describes how and when the Complaint was served,
or if it was not served for any reason.
Stalking
- A civil and
criminal offense in Georgia where a person goes about the home,
workplace, or known locations of another in a manner which
harasses that individual.
The actions need not be violent or intimidating.
A rose placed on the seat of a car can constitute an act
of stalking if the recipient is placed in fear.
Subpoena
– Court document served on a person requiring that they appear
in court to testify.
Failure to comply with a subpoena can cause the expected
witness to be jailed for contempt.
Subpoena
duces tecum – Court document served on a person, firm or company
requiring that they produce documents or material items for use
as evidence in a court action.
Failure to comply with a subpoena can result in an Order
from the Judge holding the disobedient person in contempt.
Summons
– A page which is attached to the Complaint by the staff of the
Court Clerk which instructs the Defendant to file a response to
the Court within a certain number of days.
In Georgia Superior Courts the time interval is 30 days.
That amount varies with the specific Court and may be a
shorter time.
Surname
- Last name.
This name is often at issue in divorce, legitimation and
adoption cases.
Surrogacy
- A medical situation
where a child is created by artificial insemination or transfer
of an egg or embryo so that a woman carries a child for another
person or couple with the intention of releasing that child to
them when it is born. There
is no legal provisions which sponsor surrogacy in Georgia but
it is not prohibited.
Venue
- The county in which a case must be tried. Usually the venue
is based on where an event took place or where the Defendant lives.
Special rules may apply in divorce actions where one or
both of the parties have relocated at the time of the separation.
Verdict
- A decision
of a Jury. By
itself, it does not finalize a case.
The Judge who has supervised the case must sign a Judgment
which includes (or occasionally changes) the terms of the Verdict.
Verification
- A document signed by a party swearing that all facts
stated in some pleading are true.
This must be signed in the presence of a Notary Public
and attested by the Notary’s seal or stamp.
Waiver
of Venue - A document signed by a Defendant which allows the
lawsuit to proceed in a county other than the one where the law
requires it to be filed.
This is a choice of the Defendant which may be made for
any number of reasons, including cost, publicity,
or possibly so that an uncontested action can be finalized
at a place convenient for the Petitioner.
Writ
of Fieri Facias - the
evidence provided by the Court that a final judgment has been
entered so that there can be entries made on public records, and
levies made for collection of the judgment against the assets
of the Debtor. Also
called as “Fi
Fa.”
