Georgia law permits a court to modify physical or legal custody of a minor child granted under a prior award upon a showing of new and material changes in the conditions and circumstances substantially affecting the interest and welfare of the child.(1) Surprisingly though, neither the governing statutes nor published decisions of our appellate courts explicitly state whether a court can rely on the same changed circumstances to support modification of both physical and legal custody of a child. This article explores whether a petitioner must prove new and material changes in conditions affecting a child as to physical custody issues and separate changes affecting the child as to legal custody issues, in order to modify both physical and legal custody.

On the one hand, this writer knows of no Georgia authority stating that legal custody follows physical custody, such that findings of changed material conditions of a child to modify physical custody automatically justify modification of legal custody too. On the other hand, no known Georgia authority explicitly requires separate findings of changed circumstances affecting a child regarding the legal custody areas to be modified when modifying both physical and legal custody. Nonetheless, published appellate decisions point in that direction. Our Court of Appeals, for instance, has held that a court cannot modify legal custody without first finding a material change in condition affecting a child and then determining that the change in legal custody serves the child’s best interests.(2) In another case, the Court of Appeals criticized a trial court for failing to distinguish between legal and physical custody, so as to explain how it could have awarded a mother joint legal custody, after finding her unfit for what it called ‘primary custody.’(3)

This specific issue may be a matter of first impression in Georgia, yet other states with similar custody modification standards – including Maryland, Missouri, and Alaska – do require separate analyses of physical and legal custody considerations when modifying both.(4)

Whether Georgia will follow those other states remains to be seen. Nonetheless, prudence seemingly dictates that a parent seeking to modify legal as well as physical custody should attempt to assert and prove distinct changed conditions and circumstances affecting the aspects of legal custody which the parent seeks to alter.

(1) O.C.G.A. § 19-9-3(b); 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).

(2) Daniel v. Daniel, 250 Ga. App. 482, 483-485(2), 552 S.E.2d 479 (2001).

(3) Marks v. Soles, 339 Ga.App. 380, 386(2), 793 S.E.2d 587 (2016).

(4) See, e.g., Jose v. Jose, 237 Md.App. 588, 187 A.3d 729, 735-741 (Md. Ct. App. 2018); J.F.H. v. S.L.S.,550 S.W.3d 532, 537 (Mo. Ct. App. 2017); and Mendel-gleason v. Harris, 261 P.3d 397, 403 (Alaska 2011).

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