Contested Post Divorce Custody Modification Actions
Often, the circumstances of the parents and/or the child or children will change after a divorce if final. Either parent has the right to seek a custody modification if the circumstances have changed and the proposed change to the custody terms of the old order will be in the best interest of the child or children. Atlanta Child Custody Modification Attorney Russell Hippe has handled many contested post divorce custody modification actions throughout North Georgia.
Jurisdiction and Venue
Any action to modify custody must be brought as a separate action in the county of residence of the legal custodian of the child. O.C.G.A. section 19-9-23(a). The exception to this rule occurs when a Georgia court entered the custody order, the custodial parent and child have moved out of state, and the petitioning ex spouse / parent is still a Georgia resident. See UCCJEA.
New Change in Material Circumstance as a Condition to Action
To seek a modification of custody, since the prior order was entered, there must be a "change in any material conditions or circumstances of a party or the child". O.C.G.A. section 19-9-3(b); See, Morgan v. Fordham, 328 Ga. App. 227, 761 S.E.2nd 621 (2014). The material change can be either positive or negative. See, Viskup v. Viskup, 291 Ga. 103, 727 S.E.2nd 97 (2012).
The burden of proof is on the petitioner to show the required change in circumstances. See, Mink v. Mink, 195 Ga. App. 760, 395 S.E.2nd 237 (1990).
Once a Material Change is Proved, Court Applies Best Interest Standard
Once this burden is met, in making a custody modification decision, the court will look the child’s best interests and may consider any and all factors enumerated in O.C.G.A. section 19-9-3. The trial court has very broad discretion. An appellate court will not interfere unless there is a clear abuse of discretion, applying an “any evidence” standard (if there is “any evidence” to support the award, the award will be affirmed). See, Williams v. Williams, 295 Ga. 113, 757 S.E.2nd 859 (2014).
Per the Georgia Supreme Court in Bodne v. Bodne, 277 Ga. 445, 588 S.E.2nd 728 (2003), the custodial parent no longer has a prima facie right to retain custody. This means the non-custodial parent, by law, is on equal ground in a custody modification. However, as a practical matter, when considering the child’s best interests, the trial court will certainly look at the “status quo” and any disruptions or hardships a change would cause the child.
Custody cases are made on a case by case basis, are fact specific, and are difficult to predict. The trial court has power to award sole custody, joint custody, joint legal custody, and joint physical custody, and change visitation. O.C.G.A. 19-9-3(a).
Where the custodial dispute is intense, and the facts are broad ranging and/or amorphous, the appointment of a guardian ad litem is advisable.
What is a Change in Material Condition or Circumstance?
Some examples of a “change in any material condition or circumstance” of the party or the child are as follows:
1. Child executes an affidavit of election. A child 14 years old or older may elect the parent with whom he or she desires to live. See, O.C.G.A. section 19-9-3(a)(4). Effective January of 2008, this election is presumptive but not controlling. See, Driver v. Sene, 327 Ga. App. 275 (2014). (Prior to 2008, this election was controlling unless the selected parent was deemed unfit.)
2. Notice of an Intent to Relocate. If the custodial parent provides notice of an intent to relocate, the notice alone is a sufficient “change of circumstance” to warrant a modification filing. See, Gollo v. Kofler, 289 Ga. 335, 711 S.E.2nd 687 (2011).
3. There is evidence that the custodial parent is no longer suited to retain custody. If, for example, since the entry of the original order, the custodial parent has abused or neglected a child, developed a medical or emotional infirmity, succumbed or alcohol or drug abuse, or otherwise cannot provide proper care, this is a standard fitness issue. The conduct of the parties is always relevant in a child custody modification proceeding. See, Neal v. Hibbard, 2015 WL 1135565 (2015) (father’s conduct in “sexual incident” relevant in custody modification).
4. Repeated Interference with Visitation and Custodial Rights. See, Blue v. Hemmans, 327 Ga. App. 353, 759 S.E.2nd 72 (2014). This opinion indicates the denial of visitation rights and contact must be material and consistent. See also, Fifadara v. Goyal, 318 Ga. App. 196, 733 S.E.2nd 478 (2012) (custody modification proper where parent has interfered with another parent’s visitation, and court finds it is more likely that the parent awarded custody will respect the visitation order).
5. Intentional interference with the non-custodial parent’s relationship with the child. See, Bankston v. Warbington, 2015 WL 1296705 (March 2015). Trial court awarded change of custody in favor of father where trial court found that mother had moved four times – each requiring a change in schools – and that mother’s “disdain” for father was damaging the child’s relationship with her father.
6. Neglecting the medical needs of a child. See, Frank v. Lake, 266 Ga. App. 60, 596 S.E.2nd 223 (2004).
7. Improvements in the Health or the Ability of the Non-Custodial Spouse to Provide for the Child. The petitioning parent will have to demonstrate that, due to some improvement in circumstance, the child's welfare would be substantially enhanced by modifying the original order.
Some examples of an insufficient change in circumstance include the following:
1. Slight or minor changes do not warrant modification. This is a case by case determination to be decided by the trial judge.
2. Evidence of continued bickering and hostile relationship. See, Cousens v. Pittman, 266 Ga. App. 387, 597 S.E.2nd 486 (2004) holding that the evidence of the divorce parties’ bickering and hostile relationship continued since the divorce was not a new or material change in circumstances.
3. Harmless Boyfriend or Girlfriend. Absent evidence of harm to the child, the fact of co-habitation alone is insufficient evidence of a material change of condition warranting a custody modification. See, Gordon v. Abrams, 2014 WL 855715 (2015); Moses v. King, 281 Ga. App. 687, 637 S.E.2nd 97 (2006).