A custodial spouse’s relocation at best creates some inconvenience for the non-custodial spouse in exercising visitation rights. At worst, such relocation can substantially interfere with the parenting time to which the non-custodial parent otherwise would enjoy. But does an intended or already-completed relocation create grounds for the non-custodial parent to seek a change of custody?

To seek modification of child custody in Georgia, a parent must show “a change in any material conditions or circumstances of a party or the child.”(1) Such a change in material conditions or circumstances must be one which affects the welfare of the child, in order to support a modification of custody.(2)

For many years, Georgia law vested a custodial parent with a prima facie right to retain custody of a child. As a result, a non-custodial parent could modify custody only by showing that the original custodian was no longer able or suited to retain custody, or that conditions surrounding the child had so changed for the worse that modification of the original judgment would have the effect of promoting the child’s welfare. A change for the better in the conditions or circumstances of the non-custodial parent could not support modification of child custody. Application of those rules prevented a judge from finding that a custodial parent’s intended or already-completed relocation constituted a sufficient change in conditions to authorize a modification of custody, unless the move had caused or would cause a worsening of conditions in the child’s present home environment.(3)

Under current rules, a custodial parent’s relocation to another state, city, or home still will not, standing alone, authorize a change of custody. Unlike prior law, however, a court no longer can presume that a custodial parent has a prima facie right to retain custody unless the objecting parent shows that the environment of the prior or proposed relocation endangers a child’s physical, mental, or emotional well-being. A court now must make a custody award that serves the best interests of the child, taking into account the particular circumstances of every case, and may consider changes in material conditions having either a negative or positive effect on the child’s welfare.(4)

In determining whether to modify custody in actions based on a custodial parent’s announced intention to relocate, a court may consider any relevant factors, including but not limited to: a) the extent to which the child has thrived in his/her current location; b) the quality of life enjoyed by the child in his current home in comparison to the living arrangements that the child would have upon relocation; c) the harm that could result to the child’s relationship with the non-custodial parent after relocation; and d) the custodial parent’s current financial stability versus his/her expected financial circumstances after relocation.(5)

In modification actions based upon already-completed moves, a court also may take into account any relevant factors under the particular circumstances of a case. For example, the court may determine that relocation to a superior school district or to a safer neighborhood has promoted a child’s best interests and welfare.(6) The court alternatively may determine that relocation has interfered with the consistent contact between a child and the non-custodial parent and other family members in the child’s original location, and a) that those associations in the original location had benefited the child, or b) that the reduction in contact has negatively affected the child.(7) The court also may find that the child either is thriving in his/her new location or is experiencing difficulties academically or otherwise in his/her new location.(8)

(1) O.C.G.A. § 19-9-3(b).

(2) See Scott v. Scott, 276 Ga. 372, 373, 578 S.E.2d 876 (2003); and Arp v. Hammonds, 200 Ga.App. 715, 716,409 S.E.2d 275 (1991).

(3) See Ormandy v. Odom, 217 Ga.App. 780, 781, 459 S.E.2d 439 (1995), overruled by Bodne v. Bodne, 277 Ga. 445, 447, 588 S.E.2d 728 (2003).

(4) Bodne, supra, 277 Ga. at 447; Scott, supra, 276 Ga. at 374; and Donohoe v. Donohoe, 323 Ga.App. 473, 476-477, 746 S.E.2d 185 (2013).

(5) Gallo v. Kofler, 289 Ga. 355, 356-357, 711 S.E.2d 687 (2011).

(6) Scott, supra, 276 Ga. at 376.

(7) Bodne, supra, 277 Ga. at 446-447; Hardin v. Hardin, 274 Ga.App. 543, 544(1), 618 S.E.2d 169 (2005).

(8) Hardin, supra, 274 Ga.App. at 544(1).

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