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MODIFYING CHILD CUSTODY IN THE IN THE STATE OF GEORGIA

A Georgia parent trying to modify a prior child custody order must demonstrate a change of circumstances and not just that the prior court order was a mistake

The fact that a prior custody order is not in the children’s best interest, or was a mistake, or was obtained in an unfair manner, or any other such issue is irrelevant to a child custody modification case in the State of Georgia. This is true even if the prior court order clearly was not in the children’s best interests back at the time it was issued. All that matters is that there is a previous court order, the prior court order awarded custody of the children, and the order was not appealed. Once that order becomes final, any future child custody case will be a child custody modification case. In order to prevail in a child custody modification case you have to prove, from facts that happened subsequent to the date of the previous child custody order, that a material change of circumstances has happened that affects the well-being of the children. For the most part any legally articulable reason will do. If you can articulate it, and if you can prove it with facts that have occurred since the date of the last child custody order, you have a case.

To illustrate this in simpler terms, I once handled a case, long ago, where the judge admitted, and went into great detail, that the mother of the children was a mean, horrible woman, when she was awarded custody of the children. The judge went on, indicating again in great detail, that this same woman continues to be a mean, horrible woman. But, the judge said, “so what.” The fact that she is a mean, horrible woman, has no relevance to this child custody modification proceeding. If you want to modify a prior child custody award, you have to show something has changed, and not that woman continues to be the same mean, horrible woman, she always was. Case dismissed. The judge was blunt, but correct. You have to show that something has changed since the last custody order and you cannot just relitigate the same issues. What should have been raised is that the mean behavior of the other has had a detrimental impact on the children since the date of the last custody order, and a change in custody is required. But that is not what this attorney argued, and so she lost her client’s case.

The legal standard necessary to win a child custody modification case is that you have to (1) articulate, and then (2) prove, the existence of a material change in circumstances that affects the welfare of the child since the date of the entry of the last child custody order. Note: this does not require proving an “adverse” change in circumstances, but just that something material has changed, since the date of last child custody order, that affects the welfare of the child. For example, Georgia’s new child custody statute specifically states that a material change in circumstances includes “the improvement of the health of the party seeking a change in custody provisions.” If the improvement of a parent’s health is a material change of circumstances, then why not an improvement in that parent’s financial circumstances, change in their employment circumstances, their marital circumstances, their leaving the military, their living next to a golf course (if for example the child is a prodigy golfer), and a whole host of changed circumstances qualify. The change in circumstances does not have to be detrimental, but just material to the welfare of the child. But it needs to be done correctly.

What constitutes a “change in circumstances,” for child custody purposes, may or may not be straightforward

As an example, a common reason for a custody modification lawsuit under Georgia law is based upon the relocation of one of the parents from one state to another state. However, what if the custodial parent at the time of the original custody order (the mother in this case) lived in say, North Carolina, and then moved to Michigan, meanwhile the non-custodial parent (the father in this case) continued to reside in Sandy Springs, Georgia? The non-custodial parent files a custody modification, articulating that the child’s move from North Carolina to Michigan was a material change in circumstances, and left it at that.

Under these very same facts, we represented the mother, and won the case without even having to have a hearing, on what is called a motion for summary judgment. This was because the father could not articulate how the move from North Carolina to Michigan changed anything materially from the perspective of the child. Visiting with the child in North Carolina was already long-distance visitation, and would make no material difference if he instead had to visit the child in Michigan. Case dismissed. You will never get to the best interest of the child portion of the case if you cannot first make out the material change in circumstances aspect of the case. The father’s attorneys did not understand this nuanced aspect of the law, and relied upon a mere change in geographical location. Yes, a long-distance move can and often does comprise the necessary material change in circumstances to prosecute a case like this. However, what this father’s attorneys failed to understand was the “why” of the law, and thus its nuances. It was a case they could have otherwise won if they had a better understanding of the law such as how the new environment, in Michigan, was a change of circumstances for the child, and not simply that the move itself was the change of circumstances. But that was not our problem, as I represented the mother in that particular case.

What comprises a material change of circumstances is sometimes straightforward, but sometimes it is not, and can be a very nuanced legal issue. Don’t make the same mistake made by the father, and his attorneys, in the example given above. If you are going to file a child custody modification, do it right.

Contact us or call today to learn how Shaw Law can work with you to achieve the best outcome possible for you and your children.

Scott Shaw is founder and principle of Shaw Law Firm LLC, founded in 1995 and dedicated solely to divorce, family law and child custody matters that must be addressed and decided in the state of Georgia. Shaw Law Firm serves the greater Metro Atlanta area, particularly the counties of Fulton, Gwinnett, Cobb, Cherokee, Forsyth, Paulding, Henry, Fayette, Coweta, Newton, Walton, Bartow and Douglas. Schedule a consultation today at 770-594-8309.