Atlanta Divorce Attorney Blog

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.