Background
In June 2025, Bonnie Jean and William Clarence Keeler filed a verified petition seeking sole legal and physical custody of their paternal grandchildren, alleging that the children’s father had relapsed into drug abuse, engaged in domestic violence, and neglected the children’s needs. The children’s paternal aunt and uncle, Suzanne and Paul Gillen, moved to intervene in the custody action in July 2025, seeking visitation rights under OCGA § 19-7-3(b)(1)(B). The Gillens alleged they had developed a substantial relationship with the children, including maintaining bedrooms for them and providing financial support during visits.
Following a hearing, the trial court denied the motion to intervene, concluding that the motion had unduly delayed the matter and that such intervention would substantially prejudice the adjudication of the rights of the original parties. The trial court further found that the best interests of the minor children were paramount. While the Gillens’ appeal was pending, the Grandparents and the Defendant-Father reached a settlement, and the trial court entered a consent final custody order that prohibited contact between the children and the Gillens.
The Court’s Holding
The Court of Appeals of Georgia, in an opinion by Judge Whitaker, held that the trial court erred in denying the motion to intervene. The court explained that OCGA § 19-7-3(b)(1)(B) provides that any family member shall have the right to intervene in any action concerning custody or visitation of a minor child. Because the statute uses the mandatory term “shall,” it confers an unconditional right to intervene, making the permissive intervention provisions of OCGA § 9-11-24(b) inapplicable. The trial court erroneously applied the permissive intervention standard, which allows denial based on undue delay or prejudice, rather than the intervention of right standard under OCGA § 9-11-24(a)(1).
The court further held that even under the intervention of right standard, the motion was timely filed one month after the custody petition and on the same day the Defendant-Father filed his response. There was no evidence that any scheduling delay was attributable to the Gillens. The court also found that the trial court’s consideration of the children’s best interests was premature because such factors are to be considered upon intervention when the court evaluates whether to grant visitation rights, not at the intervention stage.
Regarding the consent final custody order entered while the first appeal was pending, the court held that the automatic supersedeas did not deprive the trial court of jurisdiction to enter the order. The court explained that the supersedeas only affects the judgment appealed and does not prevent the trial court from handling independent matters. Because the Gillens sought only visitation rights, not custody, the adjudication of their request would not have affected the custody determination between the Grandparents and the Defendant-Father.
In Case No. A26A1515, the court dismissed the appeal for lack of jurisdiction. The court held that the denial of a motion to intervene is not a final judgment and is reviewable only under the interlocutory appeal procedure of OCGA § 5-6-34(b). Because the Gillens failed to follow that procedure, the appeal had to be dismissed. The court rejected the argument that OCGA § 5-6-34(a)(11) authorized a direct appeal, noting that the order denying intervention did not include a custody ruling.
Key Takeaways
- OCGA § 19-7-3(b)(1)(B) confers an unconditional right to intervene on family members in custody and visitation actions, and trial courts must apply the intervention of right standard under OCGA § 9-11-24(a)(1) rather than the permissive intervention standard.
- Consideration of the best interests of the children and other statutory factors under OCGA § 19-7-3(c)(1) occurs upon intervention when the court evaluates whether to grant visitation, not at the intervention stage.
- A notice of appeal triggers an automatic supersedeas only as to the judgment appealed; it does not deprive the trial court of jurisdiction to enter orders on independent matters, such as custody determinations when the intervenor seeks only visitation.
- The denial of a motion to intervene is not a final judgment and is reviewable only through the interlocutory appeal procedure of OCGA § 5-6-34(b); failure to follow that procedure requires dismissal for lack of jurisdiction.
Why It Matters
This decision clarifies the mandatory nature of family member intervention rights under Georgia law and reinforces the distinction between intervention of right and permissive intervention. Trial courts must apply the correct legal standard when family members seek to intervene in custody actions, and they cannot deny intervention based on discretionary factors like delay or prejudice when the statute confers an unconditional right.
The ruling also provides important guidance on the scope of automatic supersedeas in family law cases, confirming that trial courts retain jurisdiction to enter custody orders while appeals concerning visitation rights are pending. Additionally, the decision underscores the importance of following proper appellate procedures, as the failure to seek interlocutory review of a non-final order will result in dismissal of the appeal.