Denise Dunbar is the maternal grandmother of A. L., a minor child born in May 2006 whose parents are deceased. After the Juvenile Court of Coweta County found the child deprived and gave Dunbar long-term custody pursuant to OCGA § 15-11-58 i, the Superior Court of Cobb County entered an order on a petition for custody brought by Shannon and Michael Ertter,1 the child’s aunt and uncle, which granted permanent custody of the child to the Ertters. We agree with Dunbar that the Superior Court erred by giving custody of the child to the Ertters while the Juvenile Court’s prior custody order in the deprivation proceeding was unchallenged and still in effect. Pursuant to a deprivation proceeding commenced on June 27, 2008, the Juvenile Court found that the minor child’s parents were deceased;2 gave temporary custody of the child to the Coweta County Department of Family and Children Services DFACS by order dated July 29, 2008; and on October 10, 2008, ordered that long-term custody of the child subject to periodic review be given to Dunbar until the child’s eighteenth birthday pursuant to OCGA § 15-11-58 i. On August 5, 2008, while the deprivation proceeding was pending, the Ertters filed a petition in the Superior Court of Cobb County, the county where Dunbar resided, seeking permanent custody of the child. When they filed the Superior Court petition, the Ertters knew about the pending deprivation petition and knew the Juvenile Court had given temporary custody of the child to DFACS. According to Ms. Ertter, she contacted DFACS in early July; told the child’s caseworker to consider her as a relative willing to take custody of the child in the deprivation proceeding; and was informed that her mother, Dunbar, had indicated a willingness to take custody and was being favorably considered. On September 17, 2008, the Juvenile Court held a hearing at which the Ertters did not appear to consider a DFACS motion to transfer custody of the child to Dunbar, and on October 10, 2008, the Juvenile Court entered an order granting the motion and giving Dunbar long-term custody until the child’s eighteenth birthday. OCGA § 15-11-58 i. On December 16, 2009, the Ertters amended their Superior Court petition to seek a change of custody from Dunbar, and on June 17, 2010, the Superior Court ordered that permanent custody of the child be given to the Ertters based on the best interests of the child.
In the deprivation action, over which the Juvenile Court had exclusive original jurisdiction pursuant to OCGA § 15-11-28 a 1 C, the Court granted Dunbar long-term custody of the child until the child’s eighteenth birthday subject to periodic review as set forth in OCGA § 15-11-58 i. Accordingly, the Juvenile Court’s long-term custody order remained in effect when the Superior Court entered its permanent custody order. Compare OCGA § 15-11-58.1 providing that “except as otherwise provided by law , an order of disposition in a proceeding involving deprivation, except an order involving the appointment of a guardian of the person or property of a child, continues in force for not more than two years.” Pursuant to the Juvenile Court order, Dunbar obtained long-term physical custody of the child, but not permanent custody. OCGA § § 15-11-13; 15-11-58 i; Douglas v. Douglas , 285 Ga. 548, 549 678 SE2d 904 2009 juvenile court does not have authority to award permanent custody absent a transfer order from the superior court; OCGA § 15-11-28 c 1. The Ertters brought their action seeking permanent custody in the Superior Court of Cobb County, the county where the physical custodian, Dunbar, resided with the child.3 See Gordon v. Gordon , 269 Ga. App. 224, 225 603 SE2d 732 2004. The Superior Court had original jurisdiction over contests for permanent child custody in the nature of a habeas corpus between parents, parents and third parties, or between parties who are not parents. See In re J. R. T. , 233 Ga. 204, 205 210 SE2d 684 1974; In the Interest of K. R. S. , 253 Ga. App. 678-679 560 SE2d 292 2002. Nevertheless, because the prior Juvenile Court order in this case giving long-term physical custody to Dunbar remained in effect, we find that the Superior Court erred by exercising jurisdiction in the custody dispute. West v. Cobb County Dept. of Family & Children Svcs. , 243 Ga. 425 254 SE2d 373 1979; Segars v. State of Ga. , 309 Ga. App. 732 710 SE2d 916 2011 superior court correctly refused to exercise jurisdiction in custody dispute in light of prior existing juvenile court custody order in deprivation case; compare Wiepert v. Stover , 298 Ga. App. 683 680 SE2d 707 2009 superior court properly exercised jurisdiction where a deprivation petition was “apparently pending” in juvenile court, but was not in the record; it was not clear why DFACS had custody of the child; DFACS moved in juvenile court to be divested of custody and dismiss the case; and juvenile court declined to exercise jurisdiction. “The statutory procedure by which the Ertters may seek relief is set out at OCGA 15-11-40.”4 West , 243 Ga. at 426.
