You’ve just suffered defeat in an action to modify child custody. You believe that the judge was biased, ignored your evidence, and issued a fundamentally unfair order changing primary custody of a child. Naturally, you hope that an appellate court will reverse the miscarriage of justice. But successfully appealing a custody modification will prove no easy task. This article explores the principal hurdles to surmount in order to reverse an order modifying child custody in Georgia.

The difficulty in attacking a custody modification begins with the standard of review on appeal. An appellate court will reverse a child custody ruling only where the judge abused his/her discretion.(1) To commit an abuse of discretion, a judge must either misapply the relevant law or clearly err in a material factual finding.(2) Upon finding an abuse of discretion, the appellate court will reverse the trial judge’s ruling unless it can conclude that the judge would have had no discretion to reach a different result had he/she used the correct facts and legal analysis.(3)

Misapplying the law most commonly entails modifying custody without having first found a change in any material conditions and circumstances affecting the child.(4) Some other examples include a) changes in custody which rely on conditions and circumstances existing at the time of the last custody award, rather than relying on circumstances that changed after the last custody award, and b) changes in custody which result from improperly shifting the burden of proof to the defendant.(5)

Erring in a material factual finding means that essentially no admissible evidence supported a finding of fact on which a judge relied in making his/her conclusions of law.(6) If any evidence in the record supported a factual finding, that finding will be affirmed on appeal, even where other evidence negated the finding.(7) Moreover, a judge’s assessment of credibility of a witness (i.e., belief whether a witness testified truthfully and accurately) remains essentially unassailable on appeal.(8) The “any evidence” standard, in combination with appellate deference to a judge’s credibility determinations, makes it extremely difficult, if not impossible, for an appellant to successfully argue that a trial judge wrongly ignored compelling evidence or relied on the testimony of a witness whom the defendant’s attorney had impeached on cross-examination.

Successfully challenging a custody modification order will not automatically convert a defendant’s defeat into victory either. If a reversal on appeal results in a remand of the case for further ruling consistent with the appellate decision, the same judge whom the defendant-appellant deemed biased and unfair probably will rule again on the modification petition. For example, in a case where the trial court clearly erred in some, but not all, of the factual findings that it relied upon to support its conclusion that a material change in condition had occurred to authorize a modification in custody, the Georgia Court of Appeals vacated the trial court’s modification order and remanded the case for the judge to exercise discretion again under corrected findings of fact.(9) Odds are, when a judge issues a new order after remand, he/she will attempt to restore his/her original ruling given any wiggle room by the appellate decision.

(1) Wilson v. Perkins, 344 Ga.App. 869, 811 S.E.2d 518, 520 (2018); Jackson v. Sanders, 333 Ga.App. 544, 558(5) (2015); Blue v. Hemmans, 327 Ga.App. 353, 759 S.E.2d 72, 77 (2014); and Horton v. Hendrix, 291 Ga.App. 416, 420(2) (2008).

(2) Hemmans, supra, 759 S.E.2d at 77.

(3) Id., 759 S.E.2d at 77-78. See also Cousens v. Pittman, 266 Ga.App. 387, 390-391 (2004).

(4) See, e.g., Danner v. Robertson, 221 Ga. 516, 519(1), 145 S.E.2d 554 (1965); Burnham v. Burnham, A19A0675 (1) (Ga. Ct. App., June 4, 2019); and Odum v. Russell, 342 Ga.App. 390, 802 S.E.2d 829, 832-833(1) (2017).

(5) See, e.g., Moses v. King, 281 Ga.App. 687, 691(1), 637 S.E.2d 97 (2006); and Cousens, supra, 266 Ga.App. at 390; and Mink v. Mink, 195 Ga.App. 760, 762(3), 395 S.E.2d 237 (1990).

(6) See Hemmans, supra, 759 S.E.2d at 77. See also Osborne v. Osborne, 227 Ga. 235, 236(1), 179 S.E.2d 776 (1971); and Lightfoot v. Lightfoot, 210 Ga.App. 400, 436 S.E.2d 700,703(3) (1993).

(7) Tyree v. Jackson, 226 Ga. 690, 695-696(3), 177 S.E.2d 160 (1970); and Sanders, supra, 333 Ga.App. at 558-559(5).

(8) McDonald v. McDonald, 289 Ga. 387, 387(1), 811 S.E.2d 679 (2011); and Sanders, supra, 333 Ga.App. at 548(2).

(9) See Hemmans, supra, 759 S.E.2d at 77.

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