A prior article discussed the preclusion of self-executing changes in child custody under Georgia law. With the recent issuance of an appellate decision on a type of self-executing custody provision not covered in that article, this brief addendum on the matter seems warranted.

In White v. Fana, No. A23A0283 (Ga. Ct. App., May 31, 2023), the Court of Appeals of Georgia addressed the legality of an order conditioning visitation or other custodial rights on a substance abusing parent’s compliance with court-imposed abstinence measures. The trial court had attempted to protect a child from her father’s illegal drug usage by requiring the father to submit to regular drug testing and to direct the testing center to provide the test results to the child’s mother at least 72 hours before the father’s scheduled visitation. Critically, the court also ruled that father’s failure to do so or failure to test negatively would result in the automatic suspension of his visitation rights until he produced a negative test result. The Court of Appeals, however, deemed the latter provision an impermissible self-executing visitation order, and it reversed the trial court. Applying the principle that any self-executing change of custody provision which 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, the appellate Court held that the order, as currently drafted, unlawfully authorized implementation of a self-executing change of visitation at any time, even though the change could be triggered months or even years in the future, without any regard to the circumstances existing in the child’s life at the time of the change.(1)

The White case was actually the second time in recent years that our Court of Appeals has applied a self-executing change of visitation analysis to a custody order’s provisions regarding drug testing. The Court of Appeals in White relied in part on an earlier decision in Mashburn v. Mashburn, 353 Ga.App. 31, 836 S.E.2d 131 (2019), a case in which a mother lost custody of her minor child to the child’s grandparents. The trial court’s order in Mashburn included a provision for the mother to automatically lose two visits with her child for every positive drug screen she received in the future. The Court of Appeals held that the provision violated the rule against self-executing changes in visitation, applying the same reasoning the Court recently utilized in White.(2)

Undoubtedly, a need exists for trial courts to protect minor children from the detrimental impact of parental substance or alcohol abuse. Toward that end, trial courts have commonly required parents with histories of drug or alcohol abuse to undergo regular or random drug/alcohol screening. What Mashburn and White make clear, however, is that an order cannot automatically condition future custody or visitation rights on the outcomes of a parent’s future drug/alcohol test results. Instead, it appears that if and when a parent fails to comply with screening requirements or obtains a positive test result, a trial court must determine the child’s best interest at that time before changing or suspending the parent’s previously-ordered visitation or other custodial rights.

(1) White, supra, at *18. (2) Mashburn, supra, 353 Ga.App. at 47.

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