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Scott v. Scott

The trial court erred in concluding that the plaintiffs' petition seeking custody of their two minor granddaughters failed to a state a claim, as it gave fair notice that the plaintiffs sought custody under O.C.G.A. § § 19-7-1 b.1 and 19-9-2 based on the mother's alleged murder of the father, and these allegations were sufficient to survive a motion to dismiss.

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John and Josephine Scott appeal from the trial court’s order dismissing their petition seeking custody of their two minor granddaughters. We reverse because the trial court erroneously concluded that the Scotts’ petition failed to state a claim. 1. On appeal, we review the trial court’s grant of a motion to dismiss de novo. South Point Retail Partners v. North American Properties , 304 Ga. App. 419, 420 696 SE2d 136 2010. A motion to dismiss for failure to state a claim upon which relief can be granted should not be sustained unless 1 the allegations of the complaint disclose with certainty that the claimant would not be entitled to relief under any state of provable facts asserted in support thereof; and 2 the movant establishes that the claimant could not possibly introduce evidence within the framework of the complaint sufficient to warrant a grant of the relief sought. In deciding a motion to dismiss, all pleadings are to be construed most favorably to the party who filed them, and all doubts regarding such pleadings must be resolved in the filing party’s favor. Citations and punctuation omitted. Stendahl v. Cobb County , 284 Ga. 525, 525-526 1 668 SE2d 723 2008. In this case, the Scotts’ custody petition, filed on February 1, 2010, in Fulton County Superior Court, asserts in relevant part:

3. On or about March 4, 2008, the father of the minor children, Ralph Clifton Scott, was brutally murdered, found shot in the parties’ marital residence by the children’s mother, Lona Lee Scott. 4.

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