Georgia Modify: Rewrite the Order, Not the Marriage

Key cases

• Bodne v. Bodne, 277 Ga. 445 (Ga. 2003)

  In relocation cases the court decides custody case-by-case under the best-interests standard with no bright-line rule; the prior rule giving a relocating custodial parent a prima facie right to retain custody is overruled.

• Hardin v. Hardin, 274 Ga. App. 543 (Ga. Ct. App. 2005)

  A trial court may modify custody when a parent relocates if there is a new and material change in conditions substantially affecting the child, and, under Bodne, it must decide by the child's best interests without a bright-line test. The Court of Appeals affirmed transferring school-year custody to the father after the mother moved to Nashville for a better job, because the trial court weighed her financial reasons against evidence that the move interfered with the children's consistent contact with their father and extended family in Atlanta and that the children were having school problems in Nashville. A parent's showing that the move improved the family's income did not by itself make the custody change an abuse of discretion. The trial court had also held the mother in contempt for violating the order's 60-day advance-notice-of-move provision. The court of appeals also held that the mother's later move back to Atlanta did not require restoring her school-year custody, because her return did not cure the children's school problems or undo her past interference with the father's relationship and her violation of the notice order.

• Scott v. Scott, 276 Ga. 372 (Ga. 2003)

  A self-executing change-of-custody provision that fails to give paramount import to the child's best interests at the time of the triggering event, such as a parent's relocation, violates Georgia's public policy expressed in O.C.G.A. 19-9-3 and must be stricken, even though such provisions are not expressly prohibited by statute. The court distinguished, and left standing, flexible provisions like those approved in Weaver and Pearce that accommodate a 14-year-old child's statutory right to select the parent with whom to live. A finding at the time of the decree that a future relocation would harm the child does not save the provision, because whether a change of custody is warranted depends on the facts when the modification is sought. Scott overruled Holder v. Holder and disapproved Carr v. Carr, the earlier decisions that had enforced automatic custody changes triggered by a parent's remarriage or relocation.