Atlanta Divorce Attorney Blog

The Court of Appeals of Georgia recently heard a case which emphasizes the importance of having a transcript for the Court to refer to on appeal in family law cases. Johnson v. Ware, A11A1559 (2012). In that case, the trial court consolidated two actions concerning custody and visitation of the children, one action filed by each party. In one action (the “Ware Action”), the mother sought a modification of the father’s visitation. In the other action (the “Johnson Action”), the father sought primary physical custody of the children. The cases were tried together by agreement of the parties. Id. at 2. After the trial (in which there was no transcript takedown), the trial court held that the mother should remain the primary physical custodian and included a Parenting Plan, which specifically outlined visitation. Id. at 3.

The father appealed, arguing that the trial court erred in modifying custodial rights he was given under the parties’ settlement agreement and divorce decree. Id. at 4. According to the Court of Appeals, however, he could not show reversible error because neither the settlement agreement nor the divorce decree was in the record on appeal. Id. In addition, there was no transcript so there was no evidence regarding how that issue was treated at trial. Id. at 5. The Court of Appeals held: “The burden is on the party alleging error to show it affirmatively by the record. When the burden is not met, the judgment complained of is assumed to be correct and must be affirmed.” Id. at 5. The Court, therefore, affirmed the trial court’s decision. The father also asserted that the trial court erred by refusing to hear all the evidence he offered at trial. Id. However, again, without a transcript, the father was unable to prove this assertion and the trial court’s order was affirmed. Id. at 6.

This case shows the importance of having the court reporter takedown the proceedings. The expense involved is likely worth it as it is nearly impossible to be successful on appeal without having evidence of what happened at the trial court level to which the Court of Appeals of Georgia or Supreme Court of Georgia can refer.

I recently read an interesting article about how a parent’s smoking may affect child custody. Smokers losing custody cases a growing trend, by Myra Fleischer, The Washington Times. According to the article, “states are increasingly factoring cigarette smoking in making decisions about who gets custody of minor children. An anti-tobacco advocacy group surveyed custody cases involving smoking found that many courts have issued orders prohibiting smoking in the presence of a child, or even within 24 hours before a child arrives in the home. The survey further found that no court has ever ruled that subjecting a child to tobacco smoke should be ignored in deciding custody.

In Georgia specifically, custody is awarded according to the best interest of the child standard, and the court can consider any factor in making that decision. Thus, it is well within the confines of Georgia law for a judge to consider smoking as a factor in determining custody. According to the article, there was a Georgia custody modification case in which the mother was addicting to smoking and, after the divorce, her child was found to have asthma. In reaching its decision, the Georgia court “found that the mother was smoking in the presence of her child, which it said implied that she had insufficient concern for her child.” This reason alone was enough to change custody.

This article further shows how anything and everything can come into play in a custody battle, especially if the parent is engaging in an activity that is harmful to the child. If you are a smoker and going through a custody fight, and are unable to break the habit, at the very least you should not smoke in the presence of the children or allow others to do so.

In yet another celebrity family law case that has made national news, country singer Mindy McCready has found herself in the middle of a custody dispute with her mother. Mindy McCready’s son found in Arkansas, CNN.com, December 3, 2011. Due to McCready’s troubled past, the singer’s mother has custody of her 5-year-old son and McCready has visitation rights. Last week, McCready unlawfully took her son from her mother’s home claiming he was not safe there, and asked a court to restore custody to her, all the while refusing to travel back to Florida per a Judge’s order. Authorities recently found McCready and her son in Arkansas, and her son will be returned to McCready’s mother in Florida.

Though this case is not in Georgia, it sets a good example of what not to do when you are seeking a custody modification (which is presumably what McCready was trying to do). If there is a custody order in place, you must follow that order, until there is another order replacing it. If you feel your child is in danger under the current custody arrangement, you can file an emergency petition for modification of custody, which will be heard more quickly, or you can seek the help of law enforcement, if necessary. Taking matters into your own hands usually only makes things worse. Remember, the judge will always be looking at the best interest of your children. McCready likely made things much worse for herself by acting above the law and taking her son without first going through the court system, as these actions will be considered by the judge in the custody modification action.

According to TMZ.com**, Usher Raymond’s ex-wife has filed actions for modification of child support and modification of custody/contempt against the singer in Atlanta, Georgia. Usher’s Ex-Wife: You Don’t Deserve Our Kids, TMZ.com, November 29, 2011.

In the child support modification action, Ms. Raymond is claiming that Usher has continued to have financial success since their divorce and she should, therefore, get an upward modification of child support. In Georgia, if she can prove that there has been a substantial change in his income, specifically that he is making significantly more money now, she will likely get the upward modification she is seeking. This assumes there are no other factors at play.

In the custody modification action, which seems to include contempt claims, Ms. Raymond is claiming that: (1) Usher has failed to obtain the required permission from her to travel out of state with the children; (2) Usher has failed to get her approval before hiring nannies, as required; (3) Usher has failed to give her the first chance to watch the children when he is away for an extended time, as required; (4) Usher failed to allow her to have the children for 2-weeks in the summer of 2011, as required; and (5)Usher refused to let her have custody of the children during winter break in 2010, as required. In Georgia, to obtain a custody modification, Ms, Raymond must prove that there has been a substantial change affecting the best interests of the children. The judge will weigh all relevant factors and may appoint a guardian ad litem to do a custody evaluation if the parties are unable to come to an agreement. If the parties are unable to come to an agreement, this case could go on for a long time as a full custody investigation and evaluation will likely be completed. It should be noted that, if these claims are filed as a contempt action rather than a custody modification action, the judge cannot change custody in a contempt action. Thus, Ms. Raymond will have to file a separate petition for modification of custody.

**The facts reported in the blog are based solely on the article cited above. The author is not involved in the case.

With the holiday season upon us, many divorced parents in Georgia will look to their parenting plan for guidance on arranging their holiday schedules. Parenting plans are custody agreements that are submitted jointly or individually by each party in an action that involves child custody in Georgia. Except in those cases where emergency relief is necessary due to family violence, parenting plans are required in all actions in Georgia where child custody is at issue.

A parenting plan may be temporary until a final decree is entered, at which time a permanent parenting plan will go into effect. Under Georgia law, when considering either a joint plan or opposing plans of the parties, the court must make its determination based upon the best interest of the child. O.C.G.A. § 19-9-3. The court bases its determination on a number of factors including, but not limited to, the relationship that exists between each parent and the child, and the ability of each parent to provide the child with basic necessities. Id. at a(3).

Parenting plans require that both parties acknowledge and decide on a variety of issues. O.C.G.A. § 19-9-1. Holiday visitation is one such issue, and it can be difficult and emotional for parties to come to an agreement because it requires each party to agree to some holidays away from their children. It may never be easy to split time with your child and the other parent, but a successful parenting plan can alleviate tensions between the parties and allow each parent to enjoy time with their child.

If you need help creating a parenting plan, or seek to modify your existing parenting plan, please contact our Atlanta divorce attorneys to assist you in the process.

By Courtney Carpenter, Associate Attorney, Meriwether & Tharp LLC

The Court of Appeals of Georgia recently affirmed a modification of visitation over the appeal by the father/primary custodian. Blackmore v. Blackmore, A11A1277 (2011). In that case, the parties shared joint legal custody of their two children with the father having primary physical custody. Id. at 2. The mother later filed a Petition to Modify Visitation, seeking “more visitation and primary decision-making authority over healthcare issues and the children’s extracurricular activities.” Id. At the recommendation of the guardian ad litem and custody evaluator, the trial court at first limited the mother’s visitation and required that it be supervised. Id. at 3. However, at the final hearing, the trial court removed the visitation restrictions and granted the mother more visitation, while keeping the father as the primary physical custodian. Id. The trial court also “ordered that each parent would make decisions regarding the day-to-day care of the children...while the children were residing with that parent." Id.

The father appealed arguing, among other things, “that the court’s final order amounted to a de facto change in custody, which was impermissible because there were no changes in material circumstances.” Id. at 8. The Court of Appeals of Georgia disagreed with the father, holding that, though “[i]t is true that a trial court may not indirectly change custody by modifying the visitation schedule,” there was no such change in this case. Id. at 9, citing Martin v. Buglioli, 185 Ga. App. 702, 703 (1988); Bullington v. Bullington, 181 Ga. App. 256, 257 (2) (1986). The Court emphasized that the increased visitation provided to the mother/non-custodial parent does not exceed the time of custody provided to the father/custodial parent. Id. at 10. Thus, the increase in visitation time, even when combined with the day-to-day decision making, does not amount to a de facto change in custody. Id.

In Georgia, child custody is determined using the “best interests of the child” standard. OCGA §19-9-3(a)(2). In custody cases where the child is under the age of 11, the court is not required to consider the child’s desires in determining which parent will have custody.

In custody cases where the child is 11, 12 or 13 years of age, “the judge shall consider the desires and educational needs of the child in determining which parent shall have custody.” OCGA §19-9-3(a)(6). The judge still has complete discretion in making the custody determination and, though he must consider the child’s desires, “the child’s desires shall not be controlling.” Id. The determination is still based upon best interests of the child and the child’s desires are a factor to be considered in making this determination.

In custody cases where the child is 14 years of age or older, “the child shall have the right to select the parent with whom he or she desires to live.” OCGA §19-9-3(a)(5). The custody selection made by a child in this age group “shall be presumptive unless the parent so selected is determined not to be in the best interests of the child.” Id. Thus, the court will follow the election of the child, unless that election is not in the child’s best interest.

Georgia divorce attorneys are often asked whether a parent’s line of work can impact child custody. In Georgia, child custody is determined using the “best interests of the child” standard. OCGA §19-9-3(a)(2). In determining the best interests of the child, ”the judge may consider any relevant factor.” OCGA §19-9-3(a)(3). This means that anything and everything may impact a custody determination, including a parent’s employment. For example, if you are a truck driver traveling 5 days a week, then it is not practical for you to be the primary physical custodian because you are not home most of the time. This factor will be weighed with all other factors in the determination of custody.

The Court of Appeals of Georgia recently heard an interesting, though extremely sad, child custody case out of Fulton County. In that case, the paternal grandparents sought custody of the two minor children after the father was brutally murdered, allegedly by the mother. Scott v. Scott, A11A1206 (2011). After the mother’s murder trial resulted in a hung jury, she filed a motion to dismiss the grandparents’ custody petition for failure to state a claim. Id. at 2. The grandparents responded that they filed the original petition because, had the mother been convicted, “the children would be without parental care and control.” Id. at 3. The trial court granted the mother’s motion to dismiss, concluding that the grandparents failed to show “by clear and convincing evidence that parental custody would harm the child and that the award of custody to the parent is not in the best interest of the child.” Id. at 4.

The Georgia Court of Appeals disagreed, holding that “[i]f, within the framework of the complaint, evidence may be introduced which will sustain a grant of relief to the plaintiff, the complaint is sufficient” to withstand a motion to dismiss. Id. at 5; citing Georgia Farm Bureau Mut. Ins. Co. v. Fowler, 177 Ga. App. 834 (1986). Since the petition “gave fair notice that they sought custody of the child under OCGA §19-7-1(b.1) and 19-9-2 based upon the mother’s alleged murder of the father,” it was sufficient to survive a motion to dismiss. Id. at 5. It should be noted that this does not mean that the grandparents would necessarily win custody, but they will be given an opportunity to present their case. Since the burden to prove parental fitness is lower than the burden required to prove murder, they may be able to prove the mother unfit even though she was not convicted of the murder.

The Supreme Court of Georgia recently reversed a trial court’s ruling that a Husband had waived his right to seek a modification of his child support obligation below a specified floor. Dean v. Dean, S11A0739 (2011). In that case, the parties’ settlement agreement provided a monthly child support amount, but stated that “Husband’s child support payment would be recalculated soon after the start of each year” and that “[i]n no event shall the annual recalculation of Husband’s child support result in him paying less” that the original amount stated in the settlement agreement. Id. at 1-2.

After the Husband lost his job, he filed a petition for downward modification of child support. Id. at 2. The trial court held that the Husband did not waive his right to modify his child support obligation, but the obligation could not be reduced below the floor set by the settlement agreement. Id.

The Husband appealed and the Supreme Court of Georgia agreed, emphasizing the “straightforward rule that parties to an alimony [or child support] agreement may obtain modification unless the agreement expressly waives the right of modification by referring specifically to that right; the right to modification will be waived by agreement of the parties only in very clear waiver language which refers to the right of modification.” Id. at 1, citing Varn v. Varn, 242 Ga. 309, 311 (1978). Here, there was no express mention of a “waiver,” nor is there any “express reference to the right of alimony modification.” Id. at 3-4. Not allowing the Husband to modify below a certain floor was essentially unlawfully limiting his right to modify. The Supreme Court of Georgia, thus, found that this case required reversal.

Our Atlanta divorce attorneys have recently learned of some interactive websites that may be helpful for parents sharing custody of their children in Georgia. In particular, these websites are a helpful resource for parents who are struggling to communicate effectively or just need help staying organized.

OurFamilyWizard.com, JointParents.com and ParentingTime.net offer a range of features such as a visitation calendar, an expense log, daily journal, photo sharing, and a messaging forum. Visitation calendars allow parents to easily see who has visitation and the children's schedule. The expense log tracks who incurred an expense, the type of expense, the other parent's share, and whether that expense has been paid. Journals, photo sharing, and messaging forums provide a space for parents to communicate to each other about their children's activities, progress in school, etc. All calendars, expenses, photos and messages can be kept and recorded for future reference and may be helpful if there is future litigation. Some of the websites, like OurFamilyWizard.com, provide free professional or third party accounts for attorneys, counselors, teachers, or grandparents.

By Emily Yu, Associate Attorney, Meriwether & Tharp LLC

Last week, I discussed the Gottschalk case, where the father appealed several aspects of the Georgia trial court’s order for supervised visitation. Gottschalk v. Gottschalk, A11A0565 (2011). As mentioned, several of the father’s allegations of error were based upon the trial court’s order prohibiting dissemination of the custody evaluation. After alleging that the trial court erred in prohibiting the parties from showing the custody evaluation to their expert witnesses, the father then contended that, “regardless of the language in the orders about the custody evaluator’s report, prohibiting [the father’s] expert from testifying about the report denied [the father] his due process rights,” because the guardian relied on the report in making custody recommendations. Id. at 18.

The Georgia Court of Appeals rejected this allegation, holding that the father “had notice that the custody evaluator’s report was not to be distributed without permission of the court,” and did not avail himself of the option to obtain the court’s permission that would have allowed him to use the report. Id. at 19. In addition, the mother did not have notice that this expert would be called and moved to exclude his testimony altogether, but the court allowed the father to call the witness. Id. at 20. Thus, his due process rights were not denied. As mentioned in the previous blog, if the father had obtained permission for his expert to review and testify to the custody evaluation, as he had done with other witnesses, his expert would have been able to testify about it and he would have nothing about which to complain.

The Georgia Court of Appeals recently re-emphasized long standing Georgia case law that prohibits custody from being modified in a contempt action. Coker v. Moemeka, A11A0005 (2011). In that case, the father filed a contempt action against the mother. Shortly before the court was scheduled to hear the case, the father filed a motion for change of custody, which the trial court granted at the hearing, along with the father’s contempt petition. Id. at 4.

The mother appealed, alleging that she was not properly served, and because the father improperly added the custody issue to the contempt proceeding. Id. at 5. As to the custody issue, the Court of Appeals agreed with the mother. Georgia case law clearly states that “[i]n a contempt proceeding, the trial court does not have authority to modify a final order of custody, which must be brought as a separate action.” Id. at 6, quoting McCall v. McCall, 246 Ga. App. 770, 772 (1) (542 SE2d 168) (2000). Since this was a question of law, rather than fact, the Court owed no deference to the trial court’s ruling and vacated the custody order as plain legal error by the trial court. Coker, at 5.

A Georgia mother recently lost primary physical custody of her child when the court found that her planned move to New York was not in the child's best interest. In that case, shortly after their divorce in which the Mother received primary physical custody of the parties’ child, the Mother notified the Father that she planned to move with the child to New York. Gallo v. Kofler, S11A0185 (2011). The Father filed a Petition for Modification of Custody and, after a hearing, the trial court issued an order giving the Father primary physical custody. Id. The Mother appealed, arguing that the trial court erred in modifying custody solely because of her planned move. Id.

The Supreme Court of Georgia disagreed with the Mother. Generally, in looking at a possible custody change, the trial court must be guided by the best interests of the child. Id. Though “self-executing change of custody provisions that would automatically change custody to a non-custodial parent in the event that the custodial parent moved to another location at some point in the future are invalid,” that does not mean that the trial court is required to wait until the Mother moved to New York to determine whether a modification of custody was in the child’s best interest. Id. at 3. There was evidence at the hearing that “the child had been thriving in Georgia,” the child would have a better quality of life in Georgia than in New York, the child’s relationship with the Father could be harmed by a move, and the Mother was financially instable. Id. at 3-4. The Supreme Court of Georgia found this evidence to sufficiently support the trial court’s decision to change physical custody to the father. Id. at 4.

The Supreme Court of Georgia recently reversed a trial court's decision regarding a restriction on overnight guests during a parent's visitation time. Ward v. Ward, S11A0437 (2011). In that case, the parties’ Final Judgment and Decree of Divorce awarded primary physical custody of the children to the father, with the mother receiving substantial visitation. Id. About a year after the divorce, the parties each filed modification actions and the divorce decree was amended to include a visitation provision providing that the mother “shall not have any overnight male guests while the minor children are present.” Id.

The mother appealed, arguing that the amended visitation provision was overbroad, and the Supreme Court of Georgia agreed. Id. at 2. Presumably, this provision was included to prohibit the mother from having a boyfriend spend the night, but the Court was moved by the mother’s argument that, as written, the provision “prohibits her from having her father, a brother, a new spouse, or even the children’s father spend the night at her house while the minor children are present.” Id. Generally, “a trial court has discretion to place restrictions on custodial parents’ behavior that will harm their children,” but here, the restriction prohibits the mother from having non-romantic male visitors, which were not shown to be harmful to the children. Id. at 3. Thus, the Supreme Court of Georgia held that the trial court abused its discretion in amending the divorce decree in this manner.

Provisions such as the one addressed in this case are fairly common in divorce decrees. A better way to write this provision would be that the mother shall not have any overnight male guest that is not related by blood or marriage while the minor children are present.

In addition to addressing the final decision making issue in Avren v. Garten, the Supreme Court of Georgia also addressed the trial court’s dismissal of the mother’s petitions for contempt, and modification of custody, child support and visitation. Avren v. Garten, S11A0064 (2011). The mother contended that the trial court erred in dismissing these actions. Id. at 3.

The Supreme Court of Georgia disagreed with the mother, holding that the mother’s petitions for modification of custody, modification of visitation, and her petition for contempt were properly dismissed pursuant to OCGA §19-9-24(b), which “prohibits a legal guardian from bringing an action for modification of child custody or visitation rights or any application for contempt of court so long as visitation rights are withheld by the legal guardian in violation of the custody order.” Id. at 4. In this case, there was overwhelming evidence that the mother had left the house with the child on scheduled visitation days during the time in which the father was to pick up the child. Id. Under these circumstances, the Supreme Court of Georgia held that the trial court did not err when it dismissed these actions. Id. at 5.

The Supreme Court of Georgia also held that the mother’s petition for modification of child support was properly dismissed due to the “two-year rule.” This rule provides that “[n]o petition to modify child support may be filed by either parent within a period of two years from the date of the final order on a previous petition to modify by the same parent.” OCGA §19-6-15(k)(2). In this case, the mother filed the current petition only 11 months after her previous petition for modification of child support. Id. at 6. Since it had been less than two years, the mother's petition was properly dismissed. Id. at 7.

If you are considering appealing a Georgia custody order, it is important to consider the timing of your appeal. In a recent custody modification case, the trial court modified the parties’ divorce decree, changing custody from the mother to the father and ordering the mother to commence paying child support. Francis-Rolle v. Harvey, A11A0357 (2011). The mother appealed, arguing that the trial court erred in granting custody of the parties’ 17-year-old child to the father. Id.

Shortly after the appeal was docketed, the child turned 18 years of age. Id. at 2. The Georgia Court of Appeals dismissed the mother’s appeal of the custody order as moot since “at 18 years of age the child has reached the age of legal majority and is no longer subject to the custody order.” Id.

Though it is understandable that the mother was upset about the outcome of the custody modification case, her attorney should have advised her that her time and money would have been better spent on the other issues she raised on appeal.

Any case in Georgia involving child custody must have a formal parenting plan incorporated into the final decree. OCGA §19-9-1. In addition to the general acknowledgments discussed in the previous blog, there are also several specific things that must be included in the parenting plan:

(A) Where and when a child will be in each parent’s physical care, designating where the child will spend each day of the year;

(B) How holidays, birthdays, vacations, school breaks, and other special occasions will be spent with each parent including the time of day that each event will begin and end;

(C) Transportation arrangements including how the child will be exchanged between the parents, the location of the exchange, how the transportation costs will be paid, and any other matter relating to the child spending time with each parent;

(D) Whether supervision will be needed for any parenting time and, if so, the particulars of the supervision;

(E) An allocation of decision-making authority to one or both of the parents with regard to the child's education, health, extracurricular activities, and religious upbringing, and if the parents agree the matters should be jointly decided, how to resolve a situation in which the parents disagree on resolution; and

(F) What, if any, limitations will exist while one parent has physical custody of the child in terms of the other parent contacting the child and the other parent's right to access education, health, extracurricular activity, and religious information regarding the child.

OCGA §19-9-1(b)(2)(A)-(F). These items give specific guidance to parents as to all the details surrounding custody and visitation in an effort to eliminate confusion or disagreements.

Ideally, the parents will work together to come up with a parenting plan that addresses their unique situation. However, if the parents are unable to agree, each party shall file a proposed parenting plan with the judge, who will make the ultimate decision considering both proposals and the best interests of the child. OCGA §19-9-1(c).

Any case in Georgia involving child custody must have a formal parenting plan incorporated into the final decree. OCGA §19-9-1. There are several requirements for the mandated parenting plans. The parenting plan MUST include:

(A) A recognition that a close and continuing parent-child relationship and continuity in the child's life will be in the child's best interest;

(B) A recognition that the child's needs will change and grow as the child matures and demonstrate that the parents will make an effort to parent that takes this issue into account so that future modifications to the parenting plan are minimized;

(C) A recognition that a parent with physical custody will make day-to-day decisions and emergency decisions while the child is residing with such parent; and

(D) That both parents will have access to all of the child's records and information, including, but not limited to, education, health, extracurricular activities, and religious communications.

OCGA §19-9-1(b)(1)(A)-(D). These acknowledgements force the parents to think through how they will work together in the broader sense to raise their children. These statements must appear in any settlement agreement and/or final judgment and decree. To ensure compliance, it is recommended that the wording of the statute be followed very closely, if not exactly.

When one thinks of custody and visitation in a divorce case, the first thing that most likely comes to mind is: “When will I see my children?” An important aspect of visitation is not only when you will see your children, but also when you will be able to speak to them during the times in which your former spouse has custody/visitation. For many parents this is a no brainer – the children can speak to the other parent as often as they would like. In more adversarial divorces, however, this is not always the case. Sometimes one parent may feel that the other parent calls too often, disrupting his/her visitation or custodial time, or calls at inopportune times, when the children are doing homework or asleep.

Our family law firm recommends putting a clause in your settlement agreement addressing telephone visitation. It can be as simple as stating that the children may call the other parent at any time, but the parents may only once per day. It may also address issues such as one parent eavesdropping while the child(ren) is speaking to the other parent.

If you are unable to settle your divorce case and you believe telephone visitation may be an issue with your former spouse, be sure to bring it up to the Judge so that he/she may rule on it in the Final Judgment and Decree of Divorce and your rights will be protected.

The Supreme Court of Georgia recently affirmed a case from Gwinnett County Superior Court regarding relocation and child custody. Almon-Davis v. Davis, 286 Ga. 456 (2010). In that divorce case, both parties requested primary physical custody of their three minor sons. At the request of the husband, the court appointed a Guardian ad Litem (“GAL”) to investigate and make a custody recommendation. Id. at 457. After conducting his investigation, the GAL recommended that the father, who was living in Denver at the time, have primary physical custody, and the trial court entered a final judgment and decree of divorce to this effect. Id.

The mother appealed, contending “the trial court abused its discretion in adopting the GAL's report and recommendation… without considering the impact on the children of the Husband's out-of-state move.” Id. The Georiga Supreme Court disagreed, quoting a seminal relocation case, which states: “When exercising its discretion in relocation cases, as in all child custody cases, the trial court must consider the best interests of the child and cannot apply a bright-line test…[T]he primary consideration of the trial court in deciding custody matters must be directed to the best interests of the child involved, that all other rights are secondary, and that any determination of the best interests of the child must be made on a case-by-case basis. This analysis forbids the presumption that a relocating custodial parent will always lose custody and, conversely, forbids any presumption in favor of relocation.” Id., quoting Bodne v. Bodne, 277 Ga. 445 (2003). The Supreme Court of Georgia reviewed the transcript and found that the trial court’s consideration of the father’s move “in regard to the children’s welfare and its pragmatic consequences were pivotal” in its custody determinations. Almon-Davis at 458.

Thus, in relocation cases, there is not a presumption that someone will win or lose custody due to a party moving out of the city or state. The court will always look at the specific facts of the case and determine the best interests of the children involved.

The Court of Appeals recently addressed a custody modification in a military family. In Mitcham v. Spry, the parents’ divorce settlement agreement provided that the parties would have “joint legal and physical custody, with each parent having the minor child for six months and the custodial parent having final decision making authority.” Mitcham v. Spry, 300 Ga. App. 386 (2009). At the time of the divorce both parents were in the military, so they agreed that the child would reside with his paternal grandparents in Missouri during the parents’ periods of active duty. Id. at 387.

After both parents separated from the military, the father filed a Petition for Modification of Custody and the trial court found that there had been a material change in circumstances warranting a change of primary physical custody to the father. Id. at 388. The mother appealed, arguing that the grounds upon which the trial court relied were equally weighted and, thus, custody should remain the same.

Upon review of the transcript and record, the Georgia Court of Appeals affirmed the ruling of the trial court. The Court of Appeals reiterated that the trial court must look at the best interests of the child in determining custody, which they did in this case. The transcript did show that “the trial court acknowledged that both parties were fit and nurturing parents; that both had established a loving relationship with the child; and that since the time of the divorce, the parties had shared equal custody of the child.” Id. at 390. However, the trial court found that the father had a strong support system by living near his family, and that the child had developed a strong bond with the paternal grandparents from spending so much time there while his parents were deployed. Id. Under the circumstances, the Court of Appeals agreed that these facts tipped the scales in favor of the father and that the trial court did not abuse its discretion in awarding the father primary custody.

Recently, the Georgia Court of Appeals addressed the issue of a parent not being properly served with a custody modification action. In that case, pursuant to their Dekalb county divorce decree, the parties were granted joint legal and physical custody of their son. Hudson v. Easterling, 301 Ga. App. 207 (2009). Shortly after the divorce was final, the mother filed a petition for contempt against the father alleging several violations of the divorce decree. Id. While the contempt petition was still pending, the mother filed a petition to modify visitation but the father was not served with this action due to an incorrect address. Id. The Dekalb county trial court held a hearing on both the contempt and modification actions, for which the notice was sent to the father’s correct address. Both parties appeared at the hearing where the court granted the mother’s modification petition. Id.

The father appealed, contending that “trial court lacked personal jurisdiction over him because he was not personally served with the modification petition,” but the Georgia Court of Appeals rejected his argument. Id. at 208. The Court affirmed long standing Georgia law holding that the father “personally appeared at the hearing on the modification petition,” and “[n]othing in the record shows that [he] raised the issue of insufficient service of process at that time.” Id. The father, therefore, implicitly consented to jurisdiction and waived any claim of insufficient service of process. Id.

A judge can sometimes consider the child's choice in making a custody decision. In any contested custody case, the judge hearing and deciding the issue of custody has a duty “to exercise discretion to look to and determine solely what is for the best interest of the child and what will best promote the child's welfare and happiness and to make his or her award accordingly.” O.C.G.A. 19-9-3(a)(2). A factor that the judge will consider, as appropriate, is the child’s election as to which parent he would prefer to live.

In a custody case in which the child is 14 or older, “the child shall have the right to select the parent with whom he or she desires to live,” and “[t]he child's selection for purposes of custody shall be presumptive unless the parent so selected is determined [by the judge] not to be in the best interests of the child.” O.C.G.A. 19-9-3(a)(5).

In a contested custody case in which the child is between 11 and 14 years of age, “the judge shall consider the desires and educational needs of the child in determining which parent shall have custody,” and “shall have complete discretion in making this determination.” O.C.G.A. 19-9-3(a)(6). For this age group, “the child's desires shall not be controlling.” The judge is to consider the child’s desires and has discretion in how to do so, but “the best interests of the child standard shall be controlling.” O.C.G.A. 19-9-3(a)(6).

A decision of a Fulton County judge regarding jurisdiction in a custody modification case was recently overturned in Murillo v. Murillo, 360 Ga. App. 61 (2009). A husband and wife were divorced in Fulton County in 1997 and the wife was granted custody of the parties’ child. Id. at 62. In 2002, the wife moved with the child to North Carolina. In 2008, pursuant to the Uniform Child Custody Jurisdiction and Enforcement Act (“UCCJEA”), the husband filed a Petition to Modify Custody in Fulton County Superior Court. Id. The trial court then granted the wife’s motion asking the court to decline jurisdiction as North Carolina was the more convenient forum for the proceeding. Id.

Generally, since Fulton County was the court that entered the original custody ruling, Fulton County had “exclusive, continuing jurisdiction” over the modification action unless the court determines that it determines that it is an inconvenient forum under the circumstances and that a court of another state is a more appropriate forum. OCGA §19-9-67. To make that determination, OCGA §19-9-67(b) requires the court to consider all of the following factors:

(1) Whether family violence has occurred and is likely to continue in the future and which state could best protect the parties and the child;
(2) The length of time the child has resided outside this state;
(3) The distance between the court in this state and the court in the state that would assume jurisdiction;
(4) The relative financial circumstances of the parties;
(5) Any agreement of the parties as to which state should assume jurisdiction;
(6) The nature and location of the evidence required to resolve the pending litigation, including testimony of the child;
(7) The ability of the court of each state to decide the issue expeditiously and the procedures necessary to present the evidence; and
(8) The familiarity of the court of each state with the facts and issues in the pending litigation.

In vacating the decision of the Fulton County court, the Court of Appeals did not say that the end result was incorrect per se, but rather emphasized that the court did not consider and reference ALL of the required factors in its written Order in making its decision that it was no longer a convenient forum. Id. at 64. Thus, the Court of Appeals directed the trial courts to always consider ALL of the factors in making a jurisdiction decision.

One of the most confusing aspects of child custody cases can be where the case should be filed when the parents live in different states. Generally, in regards to custody modification actions, the law limits a parent’s ability to terminate the continuing jurisdiction of the court that made the original custody determination in order to prevent the noncustodial parent from trying to use his or her “home jurisdiction advantage” to modify custody to the disadvantage of the custodial parent. There is, however, one exception to this general rule which provides that a Georgia court "has temporary emergency jurisdiction [to make a child custody determination] if the child is present in this state and . . . it is necessary in an emergency to protect the child because the child . . . is subjected to or threatened with mistreatment or abuse." O.C.G.A. §19-9-64(a).

The Georgia Court of Appeals recently addressed this issue in Taylor v. Curl (A09A0749). In that case, subsequent to the parties’ Jackson County divorce, the mother moved with the children to Florida and the father moved to Walker County. While the children were visiting the father, he filed a petition for temporary and emergency custody of his children in the Superior Court of Walker County, citing mistreatment and abuse of the children by their mother. The mother appealed arguing that Walker County was not the proper venue for the custody modification. The Court of Appeals affirmed the trial court’s ruling granting temporary custody to the father, thereby affirming jurisdiction. Since the father met the two requirements outlined in O.C.G.A. §19-9-64(a), the trial court properly exercised temporary, emergency jurisdiction.

On March 23, 2009, the Supreme Court of Georgia affirmed the trial court’s denial of the wife’s motion for new trial in her divorce action in Rembert v. Rembert (S08F1582). Specifically, the wife alleged that the trial court erred in granting final decision making authority to the husband, who was the primary physical custodian of the parties’ children, and in awarding primary physical custody to the husband.

In regard to decision making, the wife argued that the parties did not truly have joint legal custody because the husband had final decision making authority. The Supreme Court disagreed, reaffirming a prior holding that the language of the statute governing legal custody “clearly vests in the trial court discretion to decide which parent should be empowered to make final decisions where the parents are unable to agree.” Citing Frazier v. Frazier, 280 Ga. 687, 690 (2006). As the primary physical custodian, it was appropriate that the father had final decision making authority in the likely event that the parties would not agree.

In regard to primary physical custody, the Supreme Court held that it would not disturb the trial court’s judgment awarding custody to the father, who had a stable home and a job with a regular schedule, instead of the mother, who was dating a married man, was a full time student with substantial debt, and had threatened the life of a neighbor.

Our final blog entry in our Atlanta Divorce Lawyers Guide to Divorce and Family Law Cases in Fulton County, Georgia is in regards to the Fulton County’s Guardian Ad Litem program. A Guardian Ad Litem is an attorney who has had at least 20 hours of specialized training for child welfare and custody issues. In cases involving contested child custody, modifications of custody, modification of visitation, allegations of child neglect or child abuse, the Court can assign a Guardian Ad Litem to more closely evaluate the situation and report back to the court its findings. The Court or the Guardian Ad Litem can order psychological evaluations and drug testing if applicable to help in making a custody determination.

The cost of a Guardian Ad Litem can be rather high for most divorces in Georgia. Litigants should be aware that Fulton County offers a Guardian Ad Litem (GAL) at a reduced hourly rate.

In Georgia, whether your divorce is resolved through a Settlement Agreement or with a final trial, the terms of the divorce will ultimately become an Order of the Court. Court Orders in divorce cases can be modified in limited circumstances. Specifically, Court Orders for child support, periodic alimony and rehabilitative alimony (but not lump sum alimony) may be modified upon a showing of a substantial change in your or your spouse’s financial circumstances, or your children’s circumstances. You can only bring a modification once every two years so keep this in mind when deciding whether to file a modification. Any modification of these Orders must be done prospectively. This means that the Court can only modify these Orders from the date of the filing of a petition. The Court cannot retroactively modify Court Orders. Any agreements to modify a Court Order must be in writing, executed by both parties and entered by the Court as an Order or such an agreement is not binding.

If a parent who has been awarded custody under a custody order of any type intends to move to a residence that is outside the state or a considerable distance from your home, the Court may consider the wisdom of the move. Do not wait until after the move to discuss this issue with an attorney. In Georgia, you must give at least thirty (30) days advance notice to your former spouse. Your settlement agreement may have additional requirements.

Orders of the Court regarding division of property are not modifiable at any future date. They can be changed only by amending the Final Decree, an appeal to the Court of Appeals or Supreme Court of Georgia, or by written agreement signed by both parties and filed with the court as an order.