The Georgia Court of Appeals decided Galbreath v. Braley on October 19, 2012.
The father Galbreath was accused by a 13-year-old girl of kissing, fondling and touching her during a visitation period. The girl was a sleepover guest of the parties' minor son. The father denied these accusations. The mother sought a modification of custody and visitation to restrict contact between the father and the son. The alleged victim does not seem to have had any relationship to the parties to the modification action.
In his effort to defend himself against the accusations leveled against him, the father's attorney gave notice of his intent to take the deposition of the girl. Her parents filed a motion to quash the deposition subpoena and asked the court for a protective order preventing the deposition.
In support of the protective order, the parents filed the affidavit of a social worker who had the child under treatment who described a history of emotion distress unrelated to Galbreath and that she had also identified Galbreath as a trigger for psychological distress and physiological reactivity.
The trial court had no prior Georgia cases which provided guidance on the issue. Looking to decisions from other states, the trial court balanced the importance of the child's testimony against the potential for harm to the child from testifying. The other state's decisions declined to quash the deposition choosing instead to put restrictions on the manner and conduct of the deposition. The trial court in Galbreath's case, however, chose to disallow the deposition completely.
The appellate court recognized the great importance of this testimony to Galbreath in defending himself against the effort to restrict his contact with his son. Because of this, the appellate court vacated the trial court order and issued an order directing the trial court to reconsider its ruling. The trial court was directed to consider a protective order which allowed the deposition to proceed under conditions which would provide appropriate safeguards for the interests of the child witness.
Among the possibilities to be considered were: (1) where the deposition is held; (2) the length of the deposition; (3) who shall be present at the deposition (e.g., K. W.'s mother or counselor); (4) the possibility of breaks as necessary to accommodate K. W.'s reasonable needs; (5) the option to suspend the deposition in the event of an emergency; (6) previewing the questions to be asked at the deposition; and (7) the taking of K. W.'s deposition remotely via audio visual means.
The case is important because the appellate court made a specific conclusion that this case is not evaluated any differently because the motion was brought by a non-party. They held that there is to be no distinction in the scope of discovery between parties and nonparties, so long as the discovery sought is specifically related to the cause of action.
This issue might not have arisen but for the fact that the alleged victim was not a child of the parties. Where criminal charges of this nature have been made, it is common for the bond conditions to include a provision against any contact with the alleged victim. Because the alleged victim was not the child of the parties, the possible bond conditions did not prevent contact between Galbreath and his son. If bond conditions had prevented contact with the parties' child, there would have been no need for the mother to bring an action to modify the visitation, and Galbreath might not have had the opportunity to seek a deposition.
Georgia procedure does not normally allow for the taking of depositions in criminal cases. So a related civil filing is the only opportunity for an accused person to give their attorney an opportunity to question an accuser under oath prior to trial.
This case is important not only for the interests of Galbreath related to the visitation issue but also for the criminal charges which may be made against him based on the accusations. While there is an instinct on the part of some trial judges to protect a child witness, there is still a need for a party to be able to test the strength of the evidence against him. The appellate court recognized this and directed the trial court to find a way for the examination to occur.
The appellee has sought a notice of intent to apply for certiorari to the Georgia Supreme Court. Certiorari is a means of seeking a further appeal of an appellate ruling. The notice of intent was filed on October 29, 2012.