In Georgia child custody proceedings, statutory law expressly permits parents to reach agreements “respecting any and all issues concerning custody of the child.”(1) A judge presented with such an agreement must ratify it “unless the judge makes specific written factual findings as a part of the final judgment that under the circumstances of the parents and the child in such agreement that the agreement would not be in the best interests of the child.(2) Although the statute does not specify whether custody agreements can include parental waivers of custody rights, a recent opinion of the Court of Appeals of Georgia suggests that they can.(3) This article discusses that recent appellate decision and its potential implications.

Georgia law has long permitted a parent to seek and obtain modification of a prior child custody award, upon a showing of new and material changes in the conditions and circumstances substantially affecting the interest and welfare of the child, and a judge’s determination that the requested modification serves the best interest of the child and best promotes the child’s welfare and happiness.(4) In its November 2, 2020 decision in Burnham v. Burnham, our Court of Appeals indicated (for the first time, to this writer’s knowledge) that a parent can contractually waive that statutory right to seek modification of a prior custody award.

Burnham involved a mother’s appeal of an order granting the father’s petition to modify custody of their two children due to mother’s intended relocation. In arguing that the trial court erred in finding the requisite material change in circumstances affecting the children’s best interests, mother claimed that a) she was not relocating more than 120 miles from the former marital residence, b) she therefore was not violating a separation agreement’s requirement for the parties to live within 120 miles of the marital residence, and c) father in essence had waived his right to seek modification of custody for relocations within 120 miles of the marital residence. Though rejecting mother’s waiver argument, the Court of Appeals seemingly recognized the ability of parents to waive their custody modification rights, as follows in relevant part:

Divorcing spouses are generally free to waive both statutory and constitutional rights in their divorce agreements. ‘Settlement agreements in divorce cases must be construed in the same manner and under the same rules as all other contractual agreements.’ As such, divorcing parents are free to waive many rights in a separation agreement, unless prohibited by statute or public policy, but any waiver provision ‘must be cast in very clear waiver language.’

The relocation provision at issue here did not include ‘very clear waiver language.’ For example, it did not include the word ‘waive’ or ‘waiver,’ nor did set forth any specific right being waived. Rather, the provision was found in a ‘Miscellaneous Agreements’ section of the separation agreement, among various other agreements between the parties, none of which related to the legal or physical custody of the children. Nothing in the provision connects it to the parties’ agreements concerning custody of the children in any way. Thus, we do not find that the relocation provision amounts to a waiver by either party of his or her right to seek a modification in child custody based on the relocation of the other party within 120 miles of the marital home. (Citations and quotations omitted.)(5)

Notably, that quoted language explicitly cited to the above-referenced statute permitting agreements on child custody issues.(6)

The implications of the Court of Appeals’ holding in Burnham seem potentially far-reaching. Though it remains to be seen whether our State’s Supreme Court will recognize parental waivers of the right to modify child custody, it seems likely that Georgia parents can and will begin relying on Burnham to add custody modification waivers to their separation agreements and other contracts resolving custody issues. Custody modification waivers, unlike commonly-utilized alimony waivers, have not previously constituted typical elements of agreements settling divorce and custody cases; but thanks to Burnham, such waivers should become more prevalent, perhaps substantially so.

(1) O.C.G.A. § 19-9-5(a). (2) O.C.G.A. § 19-9-5(b). (3) Burnham v. Burnham, A20A1243 (Ga. Ct. App., November 2, 2020). (4) O.C.G.A. § 19-9-3(a)(2) and (b); 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); 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). (5) Burnham, supra, citing Jones v. Jones, 280 Ga. 712, 714-715(1), 632 S.E.2d 121 (2006); Daniel v. Daniel, 250 Ga. 849, 850-852(2), 301 S.E.2d 643 (1983); and O.C.G.A. § 19-9-5(a).
(6) Burnham, supra.

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