The legal authority for a parent to seek modification of a prior child custody award upon a showing of changed circumstances affecting a child since the last award raises a disturbing possibility of custody litigation throughout a child’s minority. Naturally, the stress and expense of multiple custody proceedings can prove overwhelming. To avoid endless returns to court upon every change of circumstance, judges and parents often seek to address anticipated future events in current custody rulings. Those rulings attempt to adjust custody or parenting time automatically when the anticipated events occur, without the need to file another custody action. As this article discusses though, Georgia law substantially limits a judge’s ability to grant “self-executing” changes in child custody.
A self-executing change of custody provision is one which allows for an automatic change in custody based on a future event without any additional judicial scrutiny.(1) Typical self-executing custody provisions include those which automatically change custody or parenting time: in the event a custodial parent relocates or remarries; at a child’s election upon reaching the age of fourteen; upon the child entering a designated school grade; or upon a therapist’s determination of custodial readiness.(2)
Under Georgia law, “any self-executing change of custody provision that fails to give paramount import to the child’s best interests in a change of custody as between parents must be stricken as violative of Georgia public policy.”(3) This statutorily-expressed public policy provides that the bests interests of the child control custody changes between parents.(4) The judge hearing an issue of custody between parents must “exercise discretion to look to and determine solely what is for the best interest of the child and what will best promote the child’s welfare and happiness and to make his or her award accordingly.”(5)
An open-ended custody provision conditioned upon the occurrence of some future event that may never take place violates governing law, while a custody change coinciding with a planned event that will occur at a readily identifiable time may be valid.(6) As an example of the former, Georgia law precludes a self-executing change of custody provision that would automatically change physical custody in the event a parent moves to another location at some point in the future.(7) As an example of the latter, the law may allow a self-executing provision which automatically changes a visitation schedule upon the child reaching a designated school year, so long as the court makes its self-executing provision with consideration of the child’s best interests.(8) An automatic change of custody to the parent selected by a child upon reaching the age of fourteen also has been permitted.(9)
Rather than automatically changing custody on a triggering event such as relocation or remarriage, a trial court instead must exercise its discretion concerning a change in custody in light of the child’s best interests evaluated at the time of the proposed change.(10) Any self-executing provision that creates an automatic change of custody based solely on a parent’s relocation, remarriage, or other conditional event, without regard to the child’s best interests at the time of the change, must be rejected.(11) Thus, for example, a self-executing change in custody eighteen months after the custody order, without any determination whether the custody change is in the best interest of the child at the time the change would automatically occur, has been held invalid.(12) Self-executing changes in visitation upon completion of a designated period of therapy or the therapist’s favorable determination also have been held invalid for similar reasons.(13)
(1) Scott v. Scott, 276 Ga. 372, 373, 578 S.E.2d 876 (2003). (2) See Id.; Weaver v. Jones, 260 Ga. 493, 396 S.E.2d 890 (1990); Hardin v. Hardin, 338 Ga.App. 541, 790 S.E.2d 546 (2016); and Lester v. Boles, 335 Ga.App. 891, 782 S.E.2d 53 (2016). (3) Dellinger v. Dellinger, 278 Ga. 732, 609 S.E.2d 331 (2004), citing Scott, supra, 276 Ga. at 375. (4) O.C.G.A. § 19-9-3(a)(2); and Scott, supra, 276 Ga. at 373, 375. (5) O.C.G.A. § 19-9-3(a)(2). (6) Durden v. Anderson, 338 Ga.App. 565, 567(2), 790 S.E.2d 818 (2016), citing Lester v. Boles, 335 Ga.App. 891, 893(1), 782 S.E.2d 53 (2016). (7) Gallo v. Kofler, 289 Ga. 355, 356(1), 711 S.E.2d 687 (2011), citing Scott, supra, 276 Ga. at 374. (8) Durden, supra, 338 Ga.App. at 567(2). (9) Hardin, supra, 338 Ga.App. at 543(1), citing Weaver v. Jones, 260 Ga. 493, 396 S.E.2d 890 (1990), and Pearce v. Pearce, 244 Ga. 69, 257 S.E.2d 904 (1979). (10) Bankston v. Warbington, 332 Ga. App. 29, 34(2), 771 S.E.2d 726 (2015). (11) Scott, supra, 276 Ga. at 374; and Hardin, supra, 338 Ga.App. at 544(1). (12) Bankston v. Warbington, 332 Ga. App. 29, 34-35(2), 771 S.E.2d 726 (2015). (13) Johnson v. Johnson, 290 Ga. 359, 359–60, 721 S.E.2d 92 (2012); and Hardin, supra, 338 Ga.App. at 543-546(1).