No. If your child’s other parent files a habeas corpus petition to enforce a custody order, you cannot answer it by asking the same court to change custody.
What the Statute Says
OCGA 19-9-23(b) provides that no complaint seeking a change of legal or physical custody “shall be made in response to: (1) A petition for a writ of habeas corpus seeking to enforce a child custody order.” Subsection (c) closes the other direction, prohibiting “a complaint in the nature of habeas corpus seeking a change of child custody.”
A separate rule, OCGA 19-9-24(a), bars a parent who is holding a child in violation of a custody order from maintaining any custody action against the legal custodian at all while that is going on.
A Court Cannot Get Around It
In Hutto v. Hutto, 250 Ga. 116 (1982), a father took his daughter out of school and kept her. The mother, who had custody under the divorce decree, filed for habeas corpus. He counterclaimed, saying she was unfit. The habeas court dismissed his counterclaim but heard his evidence anyway and gave him temporary custody.
The Georgia Supreme Court reversed. Dismissing the counterclaim was not enough, because the court still “allowed the physical custodian to present evidence and essentially maintain an action against the legal custodian.”
What You Can Do Instead
File a separate action. In Alberti v. Alberti, 320 Ga. App. 724 (2013), a father filed his own change of custody complaint days before the habeas court entered its order against him. The Court of Appeals held it was not a forbidden response, and the custody change he won in it stood.
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This post is a quick overview of the law and is not intended as legal advice. Please feel free to contact our office for a consultation if you have questions about this or any other legal aspects regarding your case!