While Georgia statutes and appellate case law plainly state the findings required to modify a child custody award, the authorities remain less clear on allocation of the burden of proof in modification actions and its impact on a court’s ultimate determination. This article explores those subjects.

A Georgia court can modify physical or legal custody of a minor child granted under a prior award “upon a showing of a change in any material conditions or circumstances of a party or the child.”(1) More specifically, a trial court may modify a prior custody award only upon a showing of new and material changes in the conditions and circumstances substantially affecting the interest and welfare of a child.(2) The petitioner’s proof must show both a change in conditions and an adverse or positive effect on the child.(3) The petitioner bears the burden of proving the requisite change in material conditions affecting a child.(4)

If the petitioner fails to demonstrate new and material conditions or circumstances affecting the welfare of a child, the trial court must deny the petition to modify custody.(5) A showing of changed conditions without a showing of its material effect on the child will not suffice to authorize a change in custody.(6)

Once the trial court determines that a change in material conditions or circumstances affecting a child has occurred, the court must then base its new custody decision solely on the best interest of the child and what will best promote the child’s welfare and happiness.(7)

Georgia law does not clearly define the burden of proof for determining whether a petitioner’s requested custody modification serves the best interest of a child. Conceivably, neither party bears the burden on this issue. A line of cases hold that, in custody modification actions where the evidence is heard before the judge alone and without the intervention of the jury, and where the principal consideration is the welfare of the child involved, the proceeding is not to be governed by strict rules applicable to ordinary trials.(8) Even so, none of those cases discuss the burden of proof, and some of them infer that a court cannot relax the rules of evidence where a party objects.(9)

If the rules of evidence pertaining to burdens of proof do apply to a court’s consideration of a child’s best interests, then the Georgia Code’s provisions governing civil proceedings should offer guidance. The basic rule provides: “The burden of proof generally lies upon the party who is asserting or affirming a fact and to the existence of whose case or defense the proof of such fact is essential. If a negation or negative affirmation is essential to a party's case or defense, the proof of such negation or negative affirmation shall lie on the party so affirming it.”(10) A caveat to that basic rule clarifies: “What amount of evidence will change the onus or burden of proof shall be a question to be decided in each case by the sound discretion of the court.”(11)

Applying those basic principles, a modification petitioner should hold the burden of proving all facts on which he/she relies to claim that the requested modification will serve the child’s best interests. The responding party likewise should have the burden of proving the facts on which he/she relies to show that the requested modification of custody will be contrary to the child’s best interests. In each instance, the trial court would retain discretion to determine whether each party has sufficiently satisfied his/her burden of proof.

(1) O.C.G.A. § 19-9-3(b).

(2) Lynch v. Horton, 302 Ga.App. 597, 692 S.E.2d 34, 38(4) (2010); and Moses v. King, 281 Ga.App. 687, 690(1), 637 S.E.2d 97 (2006).

(3) Id.

(4) See Driver v. Seine, 327 Ga.App. 275, 758 S.E.2d 613, 617(3) (2014).

(5) Young v. Young, 216 Ga. 521, 522, 118 S.E.2d 82 (1961); Odum v. Russell, 342 Ga.App. 390, 802 S.E.2d 829, 832-833(1) (2017); and King, supra, 281 Ga.App. at 691(1).

(6) Evans v. Stowe, 181 Ga.App. 489, 491(4), 352 S.E.2d 811 (1987), citing Robinson v. Ashmore, 232 Ga. 498, 502, 207 S.E.2d 484 (1974). See also Terry v. Garibaldi, 274 Ga.App. 405, 409(2), 618 S.E.2d 6 (2005).

(7) O.C.G.A. § 19-9-3(a)(2). See also Viskup v. Viskup, 291 Ga. 103, 105(2), 727 S.E.2d 97 (2012); Simmons v. Wilson, 343 Ga.App. 857, 858, 862(4), 806 S.E.2d 267 (2017); and Seine, supra, 758 S.E.2d at 615.

(8) Willingham v. Willingham, 192 Ga. 405, 15 S.E.2d 514, 517 (Ga., 1941); and Phillips v. Drake, 215 Ga.App. 210, 211(1), 449 S.E.2d 879 (1994). Accord, Kohler v. Kromer, 234 Ga. 117, 118, 214 S.E.2d 551 (1975); and Frank v. Lake, 266 Ga. App. 60, 62(1), 596 S.E.2d 223 (2004).

(9) Kromer, supra, 234 Ga. at 118; and Lake, supra, 266 Ga. App. at 62(1).

(10) O.C.G.A. § 24-14-1.

(11) O.C.G.A. § 24-14-2.

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