2020 Georgia Code
Title 19 - Domestic Relations
Chapter 9 - Child Custody Proceedings
Article 1 - General Provisions
§ 19-9-3. Establishment and Review of Child Custody and Visitation

1. 1. In all cases in which the custody of any child is at issue between the parents, there shall be no prima-facie right to the custody of the child in the father or mother. There shall be no presumption in favor of any particular form of custody, legal or physical, nor in favor of either parent. Joint custody may be considered as an alternative form of custody by the judge and the judge at any temporary or permanent hearing may grant sole custody, joint custody, joint legal custody, or joint physical custody as appropriate.
   2. The judge hearing the issue of custody shall make a determination of custody of a child and such matter shall not be decided by a jury. The judge may take into consideration all the circumstances of the case, including the improvement of the health of the party seeking a change in custody provisions, in determining to whom custody of the child should be awarded. The duty of the judge in all such cases shall be to 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.
   3. In determining the best interests of the child, the judge may consider any relevant factor including, but not limited to:
      1. The love, affection, bonding, and emotional ties existing between each parent and the child;
      2. The love, affection, bonding, and emotional ties existing between the child and his or her siblings, half siblings, and stepsiblings and the residence of such other children;
      3. The capacity and disposition of each parent to give the child love, affection, and guidance and to continue the education and rearing of the child;
      4. Each parent's knowledge and familiarity of the child and the child's needs;
      5. The capacity and disposition of each parent to provide the child with food, clothing, medical care, day-to-day needs, and other necessary basic care, with consideration made for the potential payment of child support by the other parent;
      6. The home environment of each parent considering the promotion of nurturance and safety of the child rather than superficial or material factors;
      7. The importance of continuity in the child's life and the length of time the child has lived in a stable, satisfactory environment and the desirability of maintaining continuity;
      8. The stability of the family unit of each of the parents and the presence or absence of each parent's support systems within the community to benefit the child;
      9. The mental and physical health of each parent, except to the extent as provided in Code Section 30-4-5 and paragraph (3) of subsection (a) of Code Section 19-9-3 and such factors as provided in Code Section 15-11-26;
      10. Each parent's involvement, or lack thereof, in the child's educational, social, and extracurricular activities;
      11. Each parent's employment schedule and the related flexibility or limitations, if any, of a parent to care for the child;
      12. The home, school, and community record and history of the child, as well as any health or educational special needs of the child;
      13. Each parent's past performance and relative abilities for future performance of parenting responsibilities;
      14. The willingness and ability of each of the parents to facilitate and encourage a close and continuing parent-child relationship between the child and the other parent, consistent with the best interest of the child;
      15. Any recommendation by a court appointed custody evaluator or guardian ad litem;
      16. Any evidence of family violence or sexual, mental, or physical child abuse or criminal history of either parent; and
      17. Any evidence of substance abuse by either parent.
   4. In addition to other factors that a judge may consider in a proceeding in which the custody of a child or visitation or parenting time by a parent is at issue and in which the judge has made a finding of family violence:
      1. The judge shall consider as primary the safety and well-being of the child and of the parent who is the victim of family violence;
      2. The judge shall consider the perpetrator's history of causing physical harm, bodily injury, assault, or causing reasonable fear of physical harm, bodily injury, or assault to another person;
      3. If a parent is absent or relocates because of an act of domestic violence by the other parent, such absence or relocation for a reasonable period of time in the circumstances shall not be deemed an abandonment of the child for the purposes of custody determination; and
      4. The judge shall not refuse to consider relevant or otherwise admissible evidence of acts of family violence merely because there has been no previous finding of family violence. The judge may, in addition to other appropriate actions, order supervised visitation or parenting time pursuant to Code Section 19-9-7.
   5. In all custody cases in which the child has reached the age of 14 years, the child shall have the right to select the parent with whom he or she desires to live. The child's selection for purposes of custody shall be presumptive unless the parent so selected is determined not to be in the best interests of the child. The parental selection by a child who has reached the age of 14 may, in and of itself, constitute a material change of condition or circumstance in any action seeking a modification or change in the custody of that child; provided, however, that such selection may only be made once within a period of two years from the date of the previous selection and the best interests of the child standard shall apply.
   6. In all custody cases in which the child has reached the age of 11 but not 14 years, the judge shall consider the desires and educational needs of the child in determining which parent shall have custody. The judge shall have complete discretion in making this determination, and the child's desires shall not be controlling. The judge shall further have broad discretion as to how the child's desires are to be considered, including through the report of a guardian ad litem. The best interests of the child standard shall be controlling. The parental selection of a child who has reached the age of 11 but not 14 years shall not, in and of itself, constitute a material change of condition or circumstance in any action seeking a modification or change in the custody of that child. The judge may issue an order granting temporary custody to the selected parent for a trial period not to exceed six months regarding the custody of a child who has reached the age of 11 but not 14 years where the judge hearing the case determines such a temporary order is appropriate.
   7. The judge is authorized to order a psychological custody evaluation of the family or an independent medical evaluation. In addition to the privilege afforded a witness, neither a court appointed custody evaluator nor a court appointed guardian ad litem shall be subject to civil liability resulting from any act or failure to act in the performance of his or her duties unless such act or failure to act was in bad faith.
   8. If requested by any party on or before the close of evidence in a contested hearing, the permanent court order awarding child custody shall set forth specific findings of fact as to the basis for the judge's decision in making an award of custody including any relevant factor relied upon by the judge as set forth in paragraph (3) of this subsection. Such order shall set forth in detail why the court awarded custody in the manner set forth in the order and, if joint legal custody is awarded, a manner in which final decision making on matters affecting the child's education, health, extracurricular activities, religion, and any other important matter shall be decided. Such order shall be filed within 30 days of the final hearing in the custody case, unless extended by order of the judge with the agreement of the parties.
2. In any case in which a judgment awarding the custody of a child has been entered, on the motion of any party or on the motion of the judge, that portion of the judgment effecting visitation rights between the parties and their child or parenting time may be subject to review and modification or alteration without the necessity of any showing of a change in any material conditions and circumstances of either party or the child, provided that the review and modification or alteration shall not be had more often than once in each two-year period following the date of entry of the judgment. However, this subsection shall not limit or restrict the power of the judge to enter a judgment relating to the custody of a child in any new proceeding based upon a showing of a change in any material conditions or circumstances of a party or the child. A military parent's absences caused by the performance of his or her deployments, or the potential for future deployments, shall not be the sole factor considered in supporting a claim of any change in material conditions or circumstances of either party or the child; provided, however, that the court may consider evidence of the effect of a deployment in assessing a claim of any change in material conditions or circumstances of either party or the child.
3. In the event of any conflict between this Code section and any provision of Article 3 of this chapter, Article 3 shall apply.
4. It is the express policy of this state to encourage that a child has continuing contact with parents and grandparents who have shown the ability to act in the best interest of the child and to encourage parents to share in the rights and responsibilities of raising their child after such parents have separated or dissolved their marriage or relationship.
5. Upon the filing of an action for a change of child custody, the judge may in his or her discretion change the terms of custody on a temporary basis pending final judgment on such issue. Any such award of temporary custody shall not constitute an adjudication of the rights of the parties.
6. 1. In any case in which a judgment awarding the custody of a child has been entered, the court entering such judgment shall retain jurisdiction of the case for the purpose of ordering the custodial parent to notify the court of any changes in the residence of the child.
   2. In any case in which visitation rights or parenting time has been provided to the noncustodial parent and the court orders that the custodial parent provide notice of a change in address of the place for pickup and delivery of the child for visitation or parenting time, the custodial parent shall notify the noncustodial parent, in writing, of any change in such address. Such written notification shall provide a street address or other description of the new location for pickup and delivery so that the noncustodial parent may exercise such parent's visitation rights or parenting time.
   3. Except where otherwise provided by court order, in any case under this subsection in which a parent changes his or her residence, he or she must give notification of such change to the other parent and, if the parent changing residence is the custodial parent, to any other person granted visitation rights or parenting time under this title or a court order. Such notification shall be given at least 30 days prior to the anticipated change of residence and shall include the full address of the new residence.
7. Except as provided in Code Section 19-6-2, and in addition to the attorney's fee provisions contained in Code Section 19-6-15, the judge may order reasonable attorney's fees and expenses of litigation, experts, and the child's guardian ad litem and other costs of the child custody action and pretrial proceedings to be paid by the parties in proportions and at times determined by the judge. Attorney's fees may be awarded at both the temporary hearing and the final hearing. A final judgment shall include the amount granted, whether the grant is in full or on account, which may be enforced by attachment for contempt of court or by writ of fieri facias, whether the parties subsequently reconcile or not. An attorney may bring an action in his or her own name to enforce a grant of attorney's fees made pursuant to this subsection.
8. In addition to filing requirements contained in Code Section 19-6-15, upon the conclusion of any proceeding under this article, the domestic relations final disposition form as prescribed by the Judicial Council of Georgia shall be filed.
9. Notwithstanding other provisions of this article, whenever a military parent is deployed, the following shall apply:
   1. A court shall not enter a final order modifying parental rights and responsibilities under an existing parenting plan earlier than 90 days after the deployment ends, unless such modification is agreed to by the deployed parent;
   2. Upon a petition to establish or modify an existing parenting plan being filed by a deploying parent or nondeploying parent, the court shall enter a temporary modification order for the parenting plan to ensure contact with the child during the period of deployment when:
      1. A military parent receives formal notice from military leadership that he or she will deploy in the near future, and such parent has primary physical custody, joint physical custody, or sole physical custody of a child, or otherwise has parenting time with a child under an existing parenting plan; and
      2. The deployment will have a material effect upon a deploying parent's ability to exercise parental rights and responsibilities toward his or her child either in the existing relationship with the other parent or under an existing parenting plan;
   3. Petitions for temporary modification of an existing parenting plan because of a deployment shall be heard by the court as expeditiously as possible and shall be a priority on the court's calendar;
   4. 1. All temporary modification orders for parenting plans shall include a reasonable and specific transition schedule to facilitate a return to the predeployment parenting plan over the shortest reasonable time period after the deployment ends, based upon the child's best interest.
      2. Unless the court determines that it would not be in the child's best interest, a temporary modification order for a parenting plan shall set a date certain for the anticipated end of the deployment and the start of the transition period back to the predeployment parenting plan. If a deployment is extended, the temporary modification order for a parenting plan shall remain in effect, and the transition schedule shall take effect at the end of the extension of the deployment. Failure of the nondeploying parent to notify the court in accordance with this paragraph shall not prejudice the deploying parent's right to return to the predeployment parenting plan once the temporary modification order for a parenting plan expires as provided in subparagraph (C) of this paragraph.
      3. A temporary modification order for a parenting plan shall expire upon the completion of the transition period and the predeployment parenting plan shall establish the rights and responsibilities between parents for the child;
   5. Upon a petition to modify an existing parenting plan being filed by a deploying parent and upon a finding that it serves the best interest of the child, the court may delegate for the duration of the deployment any portion of such deploying parent's parenting time with the child to anyone in his or her extended family, including but not limited to an immediate family member, a person with whom the deploying parent cohabits, or another person having a close and substantial relationship to the child. Such delegated parenting time shall not create any separate rights to such person once the period of deployment has ended;
   6. If the court finds it to be in the child's best interest, a temporary modification order for a parenting plan issued under this subsection may require any of the following:
      1. The nondeploying parent make the child reasonably available to the deploying parent to exercise his or her parenting time immediately before and after the deploying parent departs for deployment and whenever the deploying parent returns to or from leave or furlough from his or her deployment;
      2. The nondeploying parent facilitate opportunities for the deployed parent to have regular and continuing contact with his or her child by telephone, e-mail exchanges, virtual video parenting time through the Internet, or any other similar means;
      3. The nondeploying parent not interfere with the delivery of correspondence or packages between the deployed parent and child of such parent; and
      4. The deploying parent provide timely information regarding his or her leave and departure schedule to the nondeploying parent;
   7. Because actual leave from a deployment and departure dates for a deployment are subject to change with little notice due to military necessity, such changes shall not be used by the nondeploying parent to prevent contact between the deployed parent and his or her child;
   8. A court order temporarily modifying an existing parenting plan or other order governing parent-child rights and responsibilities shall specify when a deployment is the basis for such order and it shall be entered by the court only as a temporary modification order or interlocutory order;
   9. A relocation by a nondeploying parent during a period of a deployed parent's absence and occurring during the period of a temporary modification order for a parenting plan shall not act to terminate the exclusive and continuing jurisdiction of the court for purposes of later determining custody or parenting time under this chapter;
   10. A court order temporarily modifying an existing parenting plan or other order shall require the nondeploying parent to provide the court and the deploying parent with not less than 30 days' advance written notice of any intended change of residence address, telephone numbers, or e-mail address;
   11. Upon a deployed parent's final return from deployment, either parent may file a petition to modify the temporary modification order for a parenting plan on the grounds that compliance with such order will result in immediate danger or substantial harm to the child, and may further request that the court issue an ex parte order. The deployed parent may file such a petition prior to his or her return. Such petition shall be accompanied by an affidavit in support of the requested order. Upon a finding of immediate danger or substantial harm to the child based on the facts set forth in the affidavit, the court may issue an ex parte order modifying the temporary parenting plan or other parent-child contact in order to prevent immediate danger or substantial harm to the child. If the court issues an ex parte order, the court shall set the matter for hearing within ten days from the issuance of the ex parte order;
   12. Nothing in this subsection shall preclude either party from filing a petition for permanent modification of an existing parenting plan under subsection (b) of this Code section; provided, however, that the court shall not conduct a final hearing on such petition until at least 90 days after the final return of the deploying parent. There shall exist a presumption favoring the predeployment parenting plan or custody order as one that still serves the best interest of the child, and the party seeking to permanently modify such plan or order shall have the burden to prove that it no longer serves the best interest of the child;
   13. When the deployment of a military parent has a material effect upon his or her ability to appear in person at a scheduled hearing, then upon request by the deploying parent and provided reasonable advance notice is given to other interested parties, the court may allow a deployed parent to present testimony and other evidence by electronic means for any matter considered by the court under this subsection. For purposes of this paragraph, the term "electronic means" shall include, but not be limited to, communications by telephone, video teleconference, Internet connection, or electronically stored affidavits or documents sent from the deployment location or elsewhere;
   14. 1. When deployment of a military parent appears imminent and there is no existing parenting plan or other order setting forth the parent's rights and responsibilities, then upon a petition filed by either parent the court shall:
          1. Expedite a hearing to establish a temporary parenting plan;
          2. Require that the deploying parent shall have continued access to the child, provided that such contact is in the child's best interest;
          3. Ensure the disclosure of financial information pertaining to both parties;
          4. Determine the child support responsibilities under Code Section 19-6-15 of both parents during the deployment; and
          5. Determine the child's best interest and consider delegating to any third parties with close contacts to the child any reasonable parenting time during the deployment. In deciding such request the court shall consider the reasonable requests of the deployed parent.
       2. Any pleading filed to establish a parenting plan or child support order under this paragraph shall be identified at the time of filing by stating in the text of the pleading the specific facts related to the deployment and by referencing this paragraph and subsection of this Code section;
   15. When an impending deployment precludes court expedited adjudication before deployment, the court may agree to allow the parties to arbitrate any issues as allowed under Code Section 19-9-1.1, or order the parties to mediation under any court established alternative dispute resolution program. For purposes of arbitration or mediation, each party shall be under a duty to provide to the other party information relevant to any parenting plan or support issues pertaining to the children or the parties;
   16. Each military parent shall be under a continuing duty to provide written notice to the nondeploying parent within 14 days of the military parent's receipt of oral or written orders requiring deployment or any other absences due to military service that will impact the military parent's ability to exercise his or her parenting time with a child. If deployment orders do not allow for 14 days' advance notice, then the military parent shall provide written notice to the other parent immediately upon receiving such notice; and
   17. A military parent shall ensure that any military family care plan that he or she has filed with his or her commander is consistent with any existing court orders for his or her child. In all instances any court order will be the first course of action for the care of a child during the absence of a military parent, and the military family care plan will be the alternative plan if the nondeploying parent either refuses to provide care for the child or acknowledges an inability to provide reasonable care for the child. A military parent shall not be considered in contempt of any court order or parenting plan when he or she in good faith implements his or her military family care plan based upon the refusal or claimed inability of a nondeploying parent to provide reasonable care for a child during a deployment.

(Ga. L. 1913, p. 110, § 1; Code 1933, § 74-107; Ga. L. 1957, p. 412, § 2; Ga. L. 1962, p. 713, § 2; Ga. L. 1976, p. 1050, § 3; Ga. L. 1978, p. 258, § 3; Ga. L. 1982, p. 3, § 19; Ga. L. 1984, p. 22, § 19; Ga. L. 1986, p. 1000, § 2; Ga. L. 1990, p. 1423, § 1; Ga. L. 1991, p. 1389, § 1; Ga. L. 1993, p. 1983, § 1; Ga. L. 1995, p. 863, § 6; Ga. L. 1999, p. 329, § 4; Ga. L. 2000, p. 1292, § 2; Ga. L. 2004, p. 780, § 3; Ga. L. 2007, p. 554, § 5/HB 369; Ga. L. 2011, p. 274, § 3/SB 112; Ga. L. 2017, p. 632, § 2-10/SB 132; Ga. L. 2019, p. 459, § 3/HB 79.)

The 2017 amendment, effective January 1, 2018, substituted "prescribed by the Judicial Council of Georgia" for "set forth in Code Section 9-11-133" near the end of subsection (h).

The 2019 amendment, effective May 2, 2019, added the exception in subparagraph (a)(3)(I).

- Pursuant to Code Section 28-9-5, in 1991, subsection (c), which was added by Ga. L. 1991, p. 1389, was redesignated as subsection (d).

Pursuant to Code Section 28-9-5, in 2007, "its" was deleted preceding "discretion" in the last sentence of paragraph (a)(2), and "educational" was substituted for "education" in subparagraph (a)(3)(J).

- Ga. L. 2007, p. 554, § 1/HB 369, not codified by the General Assembly, provides: "The General Assembly of Georgia declares that it is the policy of this state to assure that minor children have frequent and continuing contact with parents who have shown the ability to act in the best interests of their children and to encourage parents to share in the rights and responsibilities of rearing their children after the parents have separated or dissolved their marriage or relationship."

Ga. L. 2007, p. 554, § 8/HB 369, not codified by the General Assembly, provides that the 2007 amendment shall apply to all child custody proceedings and modifications of child custody filed on or after January 1, 2008.

Ga. L. 2011, p. 274, § 1/SB 112, not codified by the General Assembly, provides that: "This Act shall be known and may be cited as the 'Military Parents Rights Act.'"

Ga. L. 2019, p. 459, § 1/HB 79, not codified by the General Assembly, provides: "(a) The Georgia General Assembly finds that:

"(1) Blind individuals continue to face unfair societal biases regarding their ability to successfully provide parental care;

"(2) Blind individuals face unfair societal biases in family and dependency law proceedings, public and private adoption, guardianship, and foster care proceedings;

"(3) Children of blind individuals are being unnecessarily removed or restricted from parental care; and

"(4) Children are being denied the opportunity to enjoy loving homes with blind parents or other blind caretakers.

"(b) The purpose of this Act is to protect the best interests of children parented by blind individuals or children who could be parented by blind individuals through the establishment of procedural safeguards that require adherence to due process and equal protection rights of blind parents in the context of child welfare, foster care, adoption, and family law."

- For article recommending more consistency in age requirements of laws pertaining to the welfare of minors, see 6 Ga. St. B.J. 189 (1969). For article, "The Child as a Party in Interest in Custody Proceedings," see 10 Ga. St. B.J. 577 (1974). For article, "Domestic Relations Law," see 53 Mercer L. Rev. 265 (2001). For survey article on domestic relations cases for the period from June 1, 2002 through May 31, 2003, see 55 Mercer L. Rev. 223 (2003). For annual survey of domestic relations law, see 56 Mercer L. Rev. 221 (2004). For annual survey of domestic relations law, see 58 Mercer L. Rev. 133 (2006). For survey article on domestic relations law, see 59 Mercer L. Rev. 139 (2007). For survey article on domestic relations law, see 60 Mercer L. Rev. 121 (2008). For annual survey of law on domestic relations, see 62 Mercer L. Rev. 105 (2010). For annual survey on domestic relations law, see 68 Mercer L. Rev. 107 (2016). For article, "Criminal Law as Family Law," see 33 Ga. St. U.L. Rev. 285 (2017). For note, "Surrogate Mother Agreements in Georgia: Conflict and Accord with Statutory and Case Law," see 4 Ga. St. U.L. Rev. 153 (1988). For note on 1993 amendment of this Code section, see 10 Ga. St. U.L. Rev. 122 (1993). For comment on Stanton v. Stanton, 213 Ga. 545, 100 S.E.2d 289 (1957), holding that parents cannot by contract restrict the discretion of the court in awarding custody and provision regulating the religious upbringing of the child may be entirely disregarded by the court, see 20 Ga. B.J. 546 (1958). For comment on Bodrey v. Cape, 120 Ga. App. 859, 172 S.E.2d 643 (1969), see 7 Ga. St. B.J. 256 (1970). For comment on "Grandparents' Visitation Rights in Georgia," see 29 Emory L.J. 1083 (1980). For comment on In re A.R.B., 209 Ga. App. 324, 433 S.E.2d 411 (1993), regarding redefinition of the best interests standard, see 11 Ga. St. U.L. Rev. 711 (1995).

ANALYSIS

• General Consideration
• Award of Custody
• Parental Fitness
• Selection by Child
• Change of Custody
• Visitation Rights

General Consideration

Contact provisions cannot be based upon racial considerations.

- Although a court may validly provide, under appropriate circumstances, that a child is to have no contact with particular individuals who are deemed harmful to the child, such provision cannot be based solely upon racial considerations as such ruling would violate the public policy of the state. Turman v. Boleman, 235 Ga. App. 243, 510 S.E.2d 532 (1998).

- When the court awarded physical custody to the father in the court's modification order and the father did not contest the award of joint legal custody, the trial court properly exercised the court's authority in consideration of the best interests of the children to award joint legal custody to both parents. Walker v. Walker, 248 Ga. App. 177, 546 S.E.2d 315 (2001).

Statute dealt with custody of minor children as between parents. Chapin v. Cummings, 191 Ga. 408, 12 S.E.2d 312 (1940); Rogers v. Smith, 222 Ga. 841, 152 S.E.2d 859 (1967).

Statute was applicable only when contest was between child's parents, in which case father had no prima facie right to the child's custody; it had no application to disputes between father and third person. Waldrup v. Crane, 203 Ga. 388, 46 S.E.2d 919 (1948).

In custody case, state as parens patriae is materially concerned, and through agency of court is virtually a party to judgment, although action proceeds nominally as one between parents only. Fortson v. Fortson, 195 Ga. 750, 25 S.E.2d 518 (1943), later appeal, 197 Ga. 699, 30 S.E.2d 165 (1944).

- When divorce is sought by either party, court, not jury, has duty of disposing of custody of parties' minor children in their best interests. Weaver v. Weaver, 238 Ga. 101, 230 S.E.2d 886 (1976).

Statute conferred no jurisdiction on court. Painter v. Painter, 231 Ga. 184, 200 S.E.2d 888 (1973).

- Although a trial court may modify, sua sponte, visitation under certain circumstances pursuant to O.C.G.A. §§ 19-9-1(b) and19-9-3(b), those provisions apply only when jurisdiction and venue are proper. Rogers v. Baudet, 215 Ga. App. 214, 449 S.E.2d 900 (1994).

Court must first have jurisdiction to hear custody issue before discretion authorized can be exercised. Painter v. Painter, 231 Ga. 184, 200 S.E.2d 888 (1973).

- Trial court does not have jurisdiction to determine custody of minor child on complaint for child support and custody unaccompanied by divorce suit brought by newly resident mother against nonresident father. Painter v. Painter, 231 Ga. 184, 200 S.E.2d 888 (1973).

- Superior court judge, upon hearing divorce and child custody case, lacks jurisdiction to terminate parental rights, although the judge can exercise judicial discretion as to best interests of the child to award custody to party other than parents. Cothran v. Cothran, 237 Ga. 487, 228 S.E.2d 872 (1976).

- Trial court properly entertained the subjects of visitation and child support in the Forsyth County action and, thus, did not err in considering the best interest of the child and what will best promote the child's welfare and happiness and in making the award of child support accordingly. O'Brien v. Lewis, 351 Ga. App. 379, 830 S.E.2d 741 (2019), cert. denied, No. S19C1605, 2020 Ga. LEXIS 199 (Ga. 2020).

Court has construed former Code 1933, §§ 30-127 and 74-107 (see now O.C.G.A. §§ 19-9-1 and19-9-3) together in decisions involving custody in divorce actions, and has recognized the right of the trial judge to exercise sound legal discretion, looking to the best interest of the child or children, in awarding custody of children. Brown v. Brown, 222 Ga. 446, 150 S.E.2d 615 (1966).

- Generally, the purpose of the Juvenile Court Code of Georgia, (O.C.G.A. Ch. 11, T. 15) is not to settle questions of custody by and between parents of a minor child or children; however, it is proper for the juvenile court to decide custody issues when properly transferred to it by the superior court. Neal v. Washington, 158 Ga. App. 39, 279 S.E.2d 294 (1981).

- Trial court did not abuse the court's discretion by considering the factors listed in O.C.G.A. § 19-9-3 in a petition for adoption filed by a child's paternal grandmother and paternal step-grandfather, although the court recognized that the factors were listed in the statute governing custody between parents because the child's maternal grandmother posed no objection when the trial court announced the court's decision in open court and noted specifically that the court utilized O.C.G.A. § 19-9-3 in the court's analysis. Barr v. Gregor, 316 Ga. App. 269, 728 S.E.2d 868 (2012).

- Blanket prohibition pursuant to O.C.G.A. § 19-9-3(d) in a divorce against exposure of the parties' children to members of the gay and lesbian community who were acquainted with the husband was improper because there was no evidence that any member of the excluded community had engaged in inappropriate conduct in the presence of the children. Mongerson v. Mongerson, 285 Ga. 554, 678 S.E.2d 891 (2009), overruled on other grounds, 288 Ga. 670, 706 S.E.2d 456 (2011).

- In ruling on a parent's petition to modify custody, as the trial court made no finding of the existence of family violence under O.C.G.A. § 19-9-3(a)(4), whether the other parent had sought the help of a mental health professional or had attempted to commit suicide many years earlier was not probative of any material issue in the case. Therefore, such evidence was properly excluded. Moore v. Moore-McKinney, 297 Ga. App. 703, 678 S.E.2d 152 (2009).

Trial court's determination that the mother's mental health warranted modification of custody and restrictions on visitation was supported by findings that the mother was not capable of listening to others, had anger and impulse control issues, did not respect rules and boundaries, did not act in the child's best interest, and had a distorted view of reality. Long v. Truex, 349 Ga. App. 875, 827 S.E.2d 66 (2019).

- It was not error for a trial court to order a custody evaluation in a visitation dispute because: (1) O.C.G.A. § 19-9-22(1) included visitation in the definition of "custody"; and (2) O.C.G.A. § 19-9-3(a)(7) authorized the court to order an evaluation. Gottschalk v. Gottschalk, 311 Ga. App. 304, 715 S.E.2d 715 (2011).

- In a child custody dispute, the trial court did not commit plain legal error by failing to apply Bodne v. Bodne, 277 Ga. 445 (2003) as the trial court's order showed that the court considered 14 of the 17 non-exclusive factors in O.C.G.A. § 19-9-3 as part of determining the best interests of the child, and nothing in the trial court's order indicated the court applied any improper presumptions arising out of the mother's decision to move to New York. Woodson v. Lino, 345 Ga. App. 745, 815 S.E.2d 113 (2018).

- Trial court did not err in awarding a mother attorney's fees after granting the mother's petition to modify custody because the mother submitted a letter brief expressly seeking an award of attorney's fees pursuant to O.C.G.A. § 19-9-3(g); subsection (g) of § 19-9-3 does not require a trial court to consider the parties' financial circumstances in making the grant of attorney's fees. Therefore, to the extent Harris v. Williams, 304 Ga. App. 390 (2010) holds that O.C.G.A. § 19-9-3(g) does not authorize an award of attorney's fees in an action seeking modification of child custody, the case is overruled. Viskup v. Viskup, 291 Ga. 103, 727 S.E.2d 97 (2012).

- After a Georgia state court awarded a creditor attorney's fees because of a Chapter 13 debtor's demand for a jury trial regarding the debtor's petition for a reduction in child support, as well as because of statements concerning the creditor's financial circumstances and the creditor's counsel's estimate of potential fees in connection with such litigation, then the creditor established the existence of an obligation for attorney's fees in the debtor's bankruptcy, although contingent in nature and unliquidated. The fee award was in function in the nature of support as the award was intended to benefit the creditor, a former spouse, in connection with litigation arising in the context of a marital dissolution and, thus, it was a domestic support obligation that was excepted from discharge. Soto v. Mallet (In re Mallet), Bankr. (Bankr. N.D. Ga. Mar. 9, 2016).

- Full amount of attorney's fees award of $35,000 to a father in a child custody dispute was justified by the trial court's findings under either O.C.G.A. § 9-15-14 or O.C.G.A. § 19-9-3(g); therefore, the trial court was not required to allocate the amount the court was awarding under each statute. Taylor v. Taylor, 293 Ga. 615, 748 S.E.2d 873 (2013).

- Because there was no statutory basis given, no statutory language used, and no findings of fact presented regarding the award of attorney fees to the wife, there was no way to be certain whether the trial court awarded fees based on O.C.G.A. § 19-9-3 or some other statute. Williams v. Williams, 295 Ga. 113, 757 S.E.2d 859 (2014).

In a custody modification case, the trial court's award of attorney's fees to the mother was reversed because, given the appellate court's decision, she did not prevail, and the trial court failed to address the reasonableness of the fees, failed to specify the potentially sanctionable conduct under O.C.G.A. § 19-9-3(g), failed to identify the subsection of O.C.G.A. § 9-15-14 relied on, and failed to hold an evidentiary hearing. Wilson v. Perkins, 344 Ga. App. 869, 811 S.E.2d 518 (2018).

Order awarding a mother attorney fees was vacated and the matter remanded to the trial court as other than the mother's testimony as to the amount paid and still owed, there were no bills presented, no testimony from either of the mother's attorneys as to the reasonableness of their fees, and no breakdown to establish what services were provided by the attorneys. Steed v. Steed, Ga. App. , 843 S.E.2d 21 (2020).

- In a post-divorce matter, the trial court erred by failing to address a father's motion for attorney fees and costs because the trial court held that a number of the mother's post-trial motions were frivolous and vexatious, but did not mention or rule on the father's long-standing request for fees and costs incurred up to and including trial. Bankston v. Warbington, Ga. App. , S.E.2d (Mar. 24, 2015).

Trial court erred by failing to consider a father's motion for attorney's fees and costs because the father requested the fees and costs in writing and the trial court held that a number of the mother's post-trial motions were frivolous and vexatious, but did not mention or rule on the father's longstanding request for fees and costs incurred up to and including trial. Bankston v. Warbington, 332 Ga. App. 29, 771 S.E.2d 726 (2015).

- Trial court properly awarded the mother attorney fees for first counsel that had withdrawn because the father failed to cite any authority for the proposition that attorney fees cannot be awarded under O.C.G.A. § 19-9-3 for one who has withdrawn from representation as the statutory language provides that fees may be ordered to be paid by the parties in proportions and at times determined by the judge and as the interests of justice may require. Neal v. Hibbard, 296 Ga. 882, 770 S.E.2d 600 (2015).

Trial court had the authority to award attorney fees and other costs of child custody actions and pretrial proceedings as the father requested visitation and joint legal custody in the legitimation petition. Chalk v. Poletto, 346 Ga. App. 491, 816 S.E.2d 432 (2018).

- In a child support and custody proceeding, the order awarding the mother attorney fees was vacated and the case was remanded for the trial court to reconsider the issue because the court failed to state the statutory basis for any award and any necessary findings to support the award. Blumenshine v. Hall, 329 Ga. App. 449, 765 S.E.2d 647 (2014).

Trial court erred in failing to address the father's claim for attorney fees and costs as the trial court was authorized to award such fees given that the mother's post-trial motions were frivolous and vexatious. Bankston v. Warbington, 332 Ga. App. 29, 771 S.E.2d 726 (2015).

In an action to modify child custody, the trial court was authorized to award attorney fees under O.C.G.A. §§ 19-6-15(k)(5) and19-9-3(g); however, because the mother and the trial court did not state a statutory basis for the award, the award was vacated and the case was remanded for the trial court to explain the statutory basis for the award and to enter any necessary factual findings. Hill v. Davis, 337 Ga. App. 683, 788 S.E.2d 570 (2016).

- In a child custody dispute, the trial court did not err by confirming the arbitration award and denying the father's motion to vacate because the arbitrator's decision automatically changing visitation did not violate public policy and the claim that the award lacked evidentiary support was not a basis for vacating the arbitrator's decision. Brazzel v. Brazzel, 337 Ga. App. 758, 789 S.E.2d 626 (2016), cert. denied, No. S16C1889, 2017 Ga. LEXIS 146 (Ga. 2017).

Cited in Lockhart v. Lockhart, 173 Ga. 846, 162 S.E. 129 (1931); Butts v. Griffith, 189 Ga. 296, 5 S.E.2d 907 (1939); Loggins v. Loggins, 191 Ga. 779, 14 S.E.2d 91 (1941); Moody v. Moody, 193 Ga. 699, 19 S.E.2d 504 (1942); Attaway v. Attaway, 194 Ga. 448, 22 S.E.2d 50 (1942); Bond v. Norwood, 195 Ga. 383, 24 S.E.2d 289 (1943); Connor v. Rainwater, 200 Ga. 866, 38 S.E.2d 805 (1946); Carter v. Carter, 201 Ga. 850, 41 S.E.2d 532 (1947); Good v. Good, 205 Ga. 112, 52 S.E.2d 610 (1949); Fennell v. Fennell, 209 Ga. 815, 76 S.E.2d 387 (1953); Johnson v. Johnson, 211 Ga. 791, 89 S.E.2d 166 (1955); Boge v. McCollum, 212 Ga. 214, 91 S.E.2d 619 (1956); Rowell v. Rowell, 212 Ga. 584, 94 S.E.2d 425 (1956); Boge v. McCollum, 212 Ga. 741, 95 S.E.2d 665 (1956); Slade v. Slade, 212 Ga. 758, 95 S.E.2d 680 (1956); Perry v. Perry, 213 Ga. 847, 102 S.E.2d 534 (1958); Mathews v. Murray, 101 Ga. App. 216, 113 S.E.2d 232 (1960); Stephens v. Sudderth, 216 Ga. 222, 115 S.E.2d 519 (1960); Blood v. Earnest, 217 Ga. 642, 123 S.E.2d 913 (1962); Adams v. State, 218 Ga. 130, 126 S.E.2d 624 (1962); Faulk v. Faulk, 219 Ga. 457, 133 S.E.2d 863 (1965); Smith v. Smith, 219 Ga. 739, 135 S.E.2d 866 (1964); Bennett v. Kovacik, 220 Ga. 482, 139 S.E.2d 484 (1964); Snell v. Snell, 220 Ga. 899, 142 S.E.2d 791 (1965); McJunkin v. McJunkin, 221 Ga. 625, 146 S.E.2d 638 (1966); Thomas v. Thomas, 221 Ga. 652, 146 S.E.2d 724 (1966); Adams v. Adams, 221 Ga. 710, 146 S.E.2d 759 (1966); Rigdon v. Rigdon, 222 Ga. 679, 151 S.E.2d 712 (1966); Rogers v. Smith, 222 Ga. 841, 152 S.E.2d 859 (1967); Whaley v. Disbrow, 225 Ga. 145, 166 S.E.2d 343 (1969); Lowery v. Adams, 225 Ga. 248, 167 S.E.2d 636 (1969); Tuten v. Tuten, 227 Ga. 228, 180 S.E.2d 233 (1971); Padgett v. Penland, 230 Ga. 824, 199 S.E.2d 210 (1973); Peacock v. Adams, 230 Ga. 774, 199 S.E.2d 254 (1973); Drummond v. Fulton County Dep't of Family & Children Servs., 237 Ga. 440, 228 S.E.2d 839 (1976); Lowry v. Lowry, 238 Ga. 593, 234 S.E.2d 509 (1977); Guest v. Williams, 240 Ga. 316, 240 S.E.2d 705 (1977); Sweeney v. Sweeney, 241 Ga. 372, 245 S.E.2d 648 (1978); Davidson v. Peck, 242 Ga. 198, 249 S.E.2d 557 (1978); Sanders v. Sanders, 242 Ga. 641, 250 S.E.2d 488 (1978); Sachs v. Walzer, 242 Ga. 742, 251 S.E.2d 302 (1978); Munday v. Munday, 243 Ga. 863, 257 S.E.2d 282 (1979); Goldfarb v. Goldfarb, 246 Ga. 24, 268 S.E.2d 648 (1980); Lawrence v. Day, 247 Ga. 474, 277 S.E.2d 35 (1981); Carter v. Foster, 158 Ga. App. 701, 282 S.E.2d 180 (1981); Lifsey v. Lifsey, 256 Ga. 613, 351 S.E.2d 637 (1987); Graham v. Holmes, 218 Ga. App. 796, 463 S.E.2d 513 (1995); Steed v. Deal, 225 Ga. App. 35, 482 S.E.2d 527 (1997); Martin v. True, 232 Ga. App. 435, 502 S.E.2d 285 (1998); Perrin v. Stansell, 243 Ga. App. 475, 533 S.E.2d 458 (2000); Stills v. Johnson, 272 Ga. 645, 533 S.E.2d 695 (2000); Brandenburg v. Brandenburg, 274 Ga. 183, 551 S.E.2d 721 (2001); Lewis v. Lewis, 252 Ga. App. 539, 557 S.E.2d 40 (2001); Baca v. Baca, 256 Ga. App. 514, 568 S.E.2d 746 (2002); Moore v. Moore-McKinney, 297 Ga. App. 703, 678 S.E.2d 152 (2009); Murillo v. Murillo, 300 Ga. App. 61, 684 S.E.2d 126 (2009); Harris v. Williams, 304 Ga. App. 390, 696 S.E.2d 131 (2010); Avren v. Garten, 289 Ga. 186, 710 S.E.2d 130 (2011); El v. Martin, 317 Ga. App. 676, 732 S.E.2d 539 (2012); Lacy v. Lacy, 320 Ga. App. 739, 740 S.E.2d 695 (2013); Smith v. Smith, 350 Ga. App. 647, 829 S.E.2d 886 (2019); Gray v. State, 351 Ga. App. 703, 832 S.E.2d 857 (2019); Spirnak v. Meadows, Ga. App. , 844 S.E.2d 482 (2020).

Award of Custody

1. In General

- As between parents ordinarily no prima facie right of custody exists. Hill v. Rivers, 200 Ga. 354, 37 S.E.2d 386 (1946); Benefield v. Benefield, 216 Ga. 593, 118 S.E.2d 464 (1961).

When contest is between parents, there is no prima facie right of custody; but the court, in the exercise of the court's sound discretion, shall place children where in the court's judgment their best interest will be best served. Folsom v. Folsom, 228 Ga. 536, 186 S.E.2d 752 (1972).

Although the parties had difficulty communicating with each other, both parents were fit and proper parents and each had a loving relationship with the child, to the extent that a joint custody award, with the husband having primary physical custody, was supported by the evidence; thus, the appeals court refused to hold that the trial court abused the court's discretion in awarding primary physical custody of the child to the husband. Powell v. Powell, 277 Ga. 878, 596 S.E.2d 616 (2004).

Mother and father have equal status. Gambrell v. Gambrell, 244 Ga. 178, 259 S.E.2d 439 (1979).

- In every case when custody of minor children is involved, law requires that court having jurisdiction shall exercise discretion in awarding custody. Waller v. Waller, 202 Ga. 535, 43 S.E.2d 535 (1947).

- Judge in divorce case has broad discretion in determining which parent is entitled to custody of minor child or children. Newman v. Newman, 223 Ga. 278, 154 S.E.2d 581 (1967).

Exercise of sound legal discretion in awarding custody shall not be controlled. Willingham v. Willingham, 192 Ga. 405, 15 S.E.2d 514 (1941); Jordan v. Jordan, 195 Ga. 771, 25 S.E.2d 500 (1943); Bignon v. Bignon, 202 Ga. 141, 42 S.E.2d 426 (1947); Handley v. Handley, 204 Ga. 57, 48 S.E.2d 87 (1948); Benefield v. Benefield, 216 Ga. 593, 118 S.E.2d 464 (1961).

When trial judge has exercised discretion in making award of minor children as between divorced parents, the supreme court will not interfere unless evidence clearly shows abuse of the discretion vested in the judge. Adams v. Adams, 206 Ga. 881, 59 S.E.2d 366 (1950).

Law vests broad discretion in trial court judge regarding custody awards, and unless it appears that such discretion has been manifestly abused, action in awarding custody of minor child will not be disturbed by the appellate court. Lynn v. Lynn, 202 Ga. 776, 44 S.E.2d 769 (1947); Hodges v. Hodges, 77 Ga. App. 86, 47 S.E.2d 823 (1948); Adams v. Heffernan, 217 Ga. 404, 122 S.E.2d 735 (1961).

In questions of custody, judge has wide latitude and discretion in determining what is in children's best interest, welfare, and happiness. This discretion will be interfered with only in those cases when abuse is shown. Barnes v. Tant, 217 Ga. 67, 121 S.E.2d 125 (1961).

When no abuse of judicial discretion appears from the record, the appellate court will not interfere to control trial court judgment. Murphy v. Dixon, 218 Ga. 111, 126 S.E.2d 616 (1962).

Trial court did not abuse the court's discretion in awarding primary physical custody of the parties' older son, who had been adopted by the husband, to the wife and primary physical custody of the younger daughter to the husband because the court's factual findings were supported by evidence that the husband had cared for the children by feeding, clothing, and bathing the children, taking the children to medical appointments, caring for the children while the wife was out of town, and helping the son with schoolwork, whereas the wife had deliberately misrepresented matters to the court, was not a credible witness, had put her own desires and perceived needs ahead of and to the detriment of her children, and lacked the moral fiber to be a role model for her children. Anderson v. Anderson, 278 Ga. 713, 606 S.E.2d 251 (2004).

As a trial court did not base the court's custody decision in the parties' divorce action solely on their postnuptial reconciliation agreement pursuant to O.C.G.A. § 19-9-5(b), but instead, the court found that the custody arrangement encompassed within the agreement was in the children's best interests pursuant to the factors under O.C.G.A. § 19-9-3(a)(3)(A-Q), there was no abuse of discretion in the custody award. Spurlin v. Spurlin, 289 Ga. 818, 716 S.E.2d 209 (2011).

- Trial court, in the court's order, failed to make any findings of fact and conclusions of law concerning the father's request for modification of custody, despite the father's request. Warren v. Smith, 336 Ga. App. 342, 785 S.E.2d 25 (2016).

- Father was properly awarded primary physical custody of the parties' minor child utilizing a best interests of the child standard under O.C.G.A. § 19-9-3(a)(2) because allegations of sexual abuse by the father were inconclusive and the mother's handling of the allegations had a negative effect on the relationship between the child and the father; the trial court also properly relied on testimony from, inter alia, the guardian ad litem, the child's therapist, and a psychologist who had evaluated the mother. King v. King, 284 Ga. 364, 667 S.E.2d 30 (2008).

Trial court properly granted the parties joint legal custody of the child, awarded the father primary physical custody, and afforded the mother visitation rights as the father could provide for the child's basic needs and care, the father was gainfully employed in a job that allowed the father flexibility to care for the child, the father had taken steps to establish a home for the child, and the father and the child had developed a bond; the mother was involved in an abusive relationship, and took specific actions to keep the mother's parents and the father away from the child; and the father facilitated the required visitation with the mother, and made efforts to ensure that the child spent time with the father's and the mother's parents. Sigafoose v. Cobb, 345 Ga. App. 783, 815 S.E.2d 136 (2018).

Award of custody based upon conflicting evidence does not of itself show abuse of discretion. Adams v. Adams, 206 Ga. 881, 59 S.E.2d 366 (1950).

- In a proceeding on a father's petition for custody, when the issue of custody had not been determined in a prior legitimation action, the court erred in requiring the father to show a material change of condition affecting the well being of the child; rather, the dispute must be resolved under the best interest of the child test. Kennedy v. Adams, 218 Ga. App. 120, 460 S.E.2d 540 (1995).

- Trial court's factual findings were reflective of the evidence which showed that the mother appeared more in tune with the child's health and financial needs, as evidenced by the father's failure to seek medical attention when the child had scarlet fever, the mother showed greater disposition toward the child's daily needs and the father did not make support payments to the mother despite a larger income, and the mother was more attentive to the child's needs. Woodson v. Lino, 345 Ga. App. 745, 815 S.E.2d 113 (2018).

2. Child's Best Interests and Welfare

Between parents, child's best interests control.

- Statute imposed upon court duty of making the court's award of custody in accordance with best interests of child; and this consideration alone must control judgment of court. Any rule of law that would defeat this single purpose is contrary to that section and should not be sustained. Pruitt v. Butterfield, 189 Ga. 593, 6 S.E.2d 786 (1940).

In all cases between parents for custody of minor child, law imposes upon trial judge duty to exercise sound discretion and let welfare of child control the judge's award. Pruitt v. Butterfield, 189 Ga. 593, 6 S.E.2d 786 (1940); Dyche v. Dyche, 218 Ga. 833, 131 S.E.2d 104 (1963).

In contest between parents over custody of minor children, paramount issue is welfare and best interest of children. Jordan v. Jordan, 195 Ga. 771, 25 S.E.2d 500 (1943); Handley v. Handley, 204 Ga. 57, 48 S.E.2d 827 (1948); Durden v. Durden, 224 Ga. 417, 162 S.E.2d 385 (1968).

In cases between parties involving custody of their minor children, rule is established that judge exercises sound legal discretion, looking to best interests of child or children. Parr v. Parr, 196 Ga. 805, 27 S.E.2d 687 (1943); Lynn v. Lynn, 202 Ga. 776, 44 S.E.2d 769 (1947); Adams v. Heffernan, 217 Ga. 404, 122 S.E.2d 735 (1961).

In all cases where custody of minor child is involved, paramount consideration is welfare and best interest of child. Hodges v. Hodges, 77 Ga. App. 86, 47 S.E.2d 823 (1948).

Fundamental basis for fixing custody as between parents is welfare of children. Bettes v. Bettes, 223 Ga. 732, 157 S.E.2d 742 (1967).

In all custody cases with respect to child or children under 14 years of age, trial court has wide discretion in awarding custody and in exercising such discretion; it is the trial court's duty to look to and determine solely what is in best interests of child or children. Whaley v. Disbrow, 225 Ga. 145, 166 S.E.2d 343 (1969).

In divorce action in which child custody is an issue, test for use by trial court in determining which parent shall have child custody is "best interests of child." Higbee v. Tuck, 242 Ga. 376, 249 S.E.2d 62 (1978).

When trial court states that both parties are fit and proper persons to have custody of minor child and that interests of child will be best served by awarding permanent custody of child to mother, it is utilizing appropriate test, and does not abuse the court's discretion. Dorminy v. Dorminy, 242 Ga. 326, 249 S.E.2d 49 (1978).

Upon a review of the trial court's final custody order, despite the wife's contrary claims, nothing in the custody order or the record showed that the court's custody ruling was based on any standard other than what was in the best interests of the children, and nothing showed that the court required the wife to disprove any allegations asserted by the husband. Moreover, the final custody determination need not be the same as that of any temporary order. Hadden v. Hadden, 283 Ga. 424, 659 S.E.2d 353 (2008).

Award of primary physical custody of a minor child to the father served the child's best interests because of the child's close relationship with his father, the continued use of the same speech therapist, and other evidence relating to stability, continuity, and the child's adjustment to relocation. Haskell v. Haskell, 286 Ga. 112, 686 S.E.2d 102 (2009).

Court must further children's best interests, regardless of one parent's willingness to give custody to other. Weaver v. Weaver, 238 Ga. 101, 230 S.E.2d 886 (1976).

- In contest for custody between two parties, both of whom are fit and proper persons, one having legal right should prevail. If both are proper parties, but neither has a legal right, one having stronger moral claim should prevail. But in every case, regardless of parties, welfare of child is the controlling and important fact. Hill v. Rivers, 200 Ga. 354, 37 S.E.2d 386 (1946).

- In a custody dispute between a biological parent and an adoptive parent, preference cannot be given to the biological parent. The test is the best interest of the child. Ivey v. Ivey, 264 Ga. 435, 445 S.E.2d 258 (1994).

- In a custody dispute involving children orphaned by the murder-suicide of their parents, a trial court did not err by awarding custody of the children to the paternal grandmother over the petition of an aunt because the aunt was involved in a divorce proceeding, had a precarious financial situation, and otherwise was unable to show that she could support her own child let alone that of her niece and nephew; plus, the aunt made representations to the niece and nephew that they would be living with her permanently, knowing that the custody matter had not yet been decided. Stone-Crosby v. Mickens-Cook, 318 Ga. App. 313, 733 S.E.2d 842 (2012).

- Trial court has an independent duty in cases of joint custody to make an award of custody that is in the best interest of the children and is not authorized to merely ratify the practices of the parties. Templeman v. Earnest, 209 Ga. App. 557, 434 S.E.2d 106 (1993).

Judge must hear evidence from both parties regarding disposition which would be in child's best interest. Mitchell v. Ward, 231 Ga. 671, 203 S.E.2d 484 (1974).

- As to conditions occurring after custody award, court has full discretion in awarding custody of child, and in exercise of such discretion the court may look to circumstances relating to child's ordinary comfort and contentment, its intellectual and moral development, and award custody to either parents according as it may be to best interests of child. Milner v. Gatlin, 143 Ga. 816, 85 S.E. 1045, 1916B L.R.A. 977 (1915); Gillens v. Gillens, 148 Ga. 631, 97 S.E. 669 (1918).

- There was evidence to support the trial court's determination that a move to Utah would be disruptive to the child, including evidence that the child had lived in Georgia most of the child's life, had relatives in Georgia, and had been unhappy on trips to Utah; such disruption was a permitted factor in considering the child's best interests as required by O.C.G.A. § 19-9-3. Curtice v. Harwell, 313 Ga. App. 263, 721 S.E.2d 200 (2011).

Trial court did not err by modifying a father's custody of a son because the father had been involved in a criminal rape trial involving a former babysitter, which caused the father to move to a different city due to the notoriety, and it was proper for the trial court to consider the logistics of visitation and a relocation of a parent in determining the best interests of the child. Neal v. Hibbard, 296 Ga. 882, 770 S.E.2d 600 (2015).

- Trial court did not abuse the court's discretion in awarding sole physical custody of two minor children to one parent where the grant was in the children's best interests and the other parent had an extramarital affair, but was granted liberal visitation with no restriction on the presence of the person with whom the affair had been conducted. Patel v. Patel, 276 Ga. 266, 577 S.E.2d 587 (2003).

- Trial court did not err in awarding primary physical custody of the child to the husband based on best interest of the child because the husband's employment schedule enabled the husband to devote more time to the child, the child was better behaved when the child was reared by the husband, and the husband provided more nutritious meals for the child. Rose v. Rose, 294 Ga. 719, 755 S.E.2d 737 (2014).

- Legitimation and custody order showed that the superior court considered a broad range of factors, including the biological father's love for and bond with his child, his financial and residential stability, his commitment to his family, and the mother's suspicious allegations of molestation against the father, pursuant to O.C.G.A. § 19-9-3(a)(3). Smith v. Pearce, 334 Ga. App. 84, 778 S.E.2d 248 (2015), cert. denied, No. S16C0247, 2016 Ga. LEXIS 33 (Ga. 2016).

- Trial court erred in applying the change in circumstances standard to a father's custody petition as the father had legitimized the child, but no previous custody determination had been made; the best interest of the child standard set forth in O.C.G.A. § 19-9-3(a) should have been used. Braynon v. Hilbert, 275 Ga. App. 511, 621 S.E.2d 529 (2005).

Best interest of the child standard set forth in O.C.G.A. § 19-9-3(a) should be used after a child is legitimized if no previous adjudication of custody has been made. Braynon v. Hilbert, 275 Ga. App. 511, 621 S.E.2d 529 (2005).

Trial court erred by failing to determine whether legitimizing the child and granting joint custody to the father was in the child's best interest because it was apparent from the trial court's oral pronouncement that the court did not analyze those issues and, therefore, the trial court's judgment was vacated and the case was remanded with direction for the trial court to consider the issues. Westbrook v. Eidys, Ga. App. , S.E.2d (Sept. 10, 2020).

Parents cannot by contract control discretion and duty of court in determining question of custody, and court may disregard contract and award children to either parent or to third party if best interests of children require it. Stanton v. Stanton, 213 Ga. 545, 100 S.E.2d 289 (1957); Crisp v. McGill, 229 Ga. 389, 191 S.E.2d 836 (1972).

Any agreement or consent to custody between husband and wife is not controlling on court. Weaver v. Weaver, 238 Ga. 101, 230 S.E.2d 886 (1976).

Father of child rendered legitimate by court order has claim to parental and custodial rights with respect to his child. Mitchell v. Ward, 231 Ga. 671, 203 S.E.2d 484 (1974).

- When question of custody has been transferred to juvenile court by superior court in divorce action, the general law pertaining to right of parents to have custody of their children (unless they have forfeited their right in manner provided by law) cannot be disregarded by judge of juvenile court. Matthews v. Matthews, 213 Ga. 87, 97 S.E.2d 158 (1957).

- Trial court did not err in awarding primary physical custody of the couple's biological child to the wife as the court's determination that splitting the siblings would cause emotional harm to both children was sufficient to overcome the statutory presumption in favor of the husband with respect to custody of the older child, who was the biological child of the husband and adopted by the wife. Hastings v. Hastings, 291 Ga. 782, 732 S.E.2d 272 (2012).

That father has no prima facie right to custody does not enlarge third parties' rights. Knox v. Knox, 226 Ga. 619, 176 S.E.2d 712 (1970).

Depriving father of all visitation rights was error in the absence of any probative evidence that he was morally unfit to exercise his right of access to his children. Woodruff v. Woodruff, 272 Ga. 485, 531 S.E.2d 714 (2000).

- In suit by father for custody of his child against child's stepfather, the mother having died, prima facie right to custody is in father, and will not be overturned absent strong case as to welfare of child so as to authorize award of child to stepfather. Chapin v. Cummings, 191 Ga. 408, 12 S.E.2d 312 (1940).

- Trial judge in custody proceeding is vested with discretion to award custody to third person, provided it appears that such disposition is in best interests of children. Shipps v. Shipps, 186 Ga. 494, 198 S.E. 230 (1938).

- While, as between parents, court has very broad discretion - looking always to best interest of child - and may award child to one, to exclusion of other, though latter may not be an unfit person to exercise custody, or has not otherwise lost right of custody, still the court, in controversy between parents, should not, ordinarily, award child to third party, if one or both parents are morally fit and custody has not otherwise been lost in one of the modes provided by law. Hill v. Rivers, 200 Ga. 354, 37 S.E.2d 386 (1946); Knox v. Knox, 226 Ga. 619, 176 S.E.2d 712 (1970).

Custody award to third person, based on parental unfitness, not reversed if supported by reasonable evidence. Gazaway v. Brackett, 241 Ga. 127, 244 S.E.2d 238 (1978).

- In the final divorce decree, the trial court erred by awarding joint legal custody of the parties' minor son to the father and the maternal grandmother because, when a parent is suitable to exercise custody over a child, O.C.G.A. § 19-9-3 does not allow parental custody to be limited by a joint custody arrangement with a grandparent or, for that matter, any other person. Stone v. Stone, 297 Ga. 451, 774 S.E.2d 681 (2015).

Although the trial court intended to act in the best interests of the child in awarding joint custody to the mother and the grandmother, reversal was required because Georgia law only allowed joint custody arrangements between parents, not between a parent and a non-parent. Sheffield v. Sheffield, 338 Ga. App. 667, 791 S.E.2d 428 (2016).

- In making award, court may consider fitness for custody, character, personality, and general health. Weaver v. Weaver, 238 Ga. 101, 230 S.E.2d 886 (1976).

- Although the trial court decided to follow the guardian ad litem's recommendation as to custody, nothing in the record suggested that the trial court failed to exercise the court's own judgment regarding what was in the best interests of the children and because there was evidence to support the trial court's ruling, the father failed to show any abuse of the trial court's discretion. Ezunu v. Moultrie, 334 Ga. App. 270, 779 S.E.2d 44 (2015).

- In contest between parents over possession of child, witnesses should not be permitted to give their opinion that one or the other of the parents is unfit and improper, or that interest of child will be best subserved by awarding custody to one of the contesting parties. Milner v. Gatlin, 143 Ga. 816, 85 S.E. 1045, 16 L.R.A. 977 (1915).

Judge may exclude parties from courtroom while child involved in custody dispute is testifying, but judge is not required to do so, as a matter of law. Brooks v. Thomas, 193 Ga. 696, 19 S.E.2d 497 (1942).

- When evidence is in conflict regarding fitness of each of the divorced parents of minor child to have the child's custody, discretion of trial judge in awarding child to the mother will not be controlled. Speer v. Speer, 217 Ga. 341, 122 S.E.2d 84 (1961); Brown v. Brown, 222 Ga. 446, 150 S.E.2d 615 (1966).

When evidence heard by trial judge is conflicting on issue of relative fitness, appellate court cannot hold that judge abused judicial discretion in an award of custody made by the judge. Hobson v. Hobson, 222 Ga. 530, 150 S.E.2d 655 (1966).

In a divorce, a trial court's award of primary physical custody of the parties' children to the husband was not disturbed because there was evidence that both parties were fit and proper parents, and, although the husband admitted hitting the wife and crashing into the wife's car after learning of the wife's extramarital affair, the trial court properly considered this evidence under O.C.G.A. § 19-9-3(a)(3), and the award was not an abuse of discretion. Brock v. Brock, 279 Ga. 119, 610 S.E.2d 29 (2005).

- Natural rights of father are not annulled by provision in divorce decree awarding custody of child to mother; they are only suspended for time being, and are revived in full force upon mother's death, or upon her forfeiture of her right of custody. Hill v. Rivers, 200 Ga. 354, 37 S.E.2d 386 (1946).

- Final decree in divorce case awarding custody of minor children to one or the other of the parties thereto is conclusive as between parties as to right of such custody, unless change of circumstances affecting interest and welfare of such children is shown and this is true even when decree, after specifically awarding such custody, is immediately followed by sentence, "subject to the further order of this court." Fuller v. Fuller, 197 Ga. 719, 30 S.E.2d 600 (1944).

When child is involved in granting of divorce decree, it is duty of trial judge to award custody; and while superior court in which divorce decree was rendered may have sought to retain exclusive jurisdiction over custody of child involved by subjecting judgment to such further order as court might pass, such judgment will not divest award of award's finality, nor retain exclusive jurisdiction over custody of child when change of condition affecting child's welfare occurs. Hanson v. Stegall, 208 Ga. 403, 67 S.E.2d 109 (1951).

Order of court in divorce decree, to effect that child of parties should remain within jurisdiction of court and that court retained jurisdiction of cause and parties thereto, constituted an attempt on part of the trial court to retain exclusive jurisdiction of case, which may not be done. Gibbs v. North, 211 Ga. 231, 84 S.E.2d 833 (1954).

- General rule is that decree of divorce awarding custody of children of parties, rendered by court of another state having jurisdiction of subject matter and of parties, will be given full effect in another state. Brandon v. Brandon, 154 Ga. 661, 115 S.E. 115 (1922).

- Decree of divorce awarding custody of children of parties, rendered by court of another state having jurisdiction of subject matter and of parties, shall be given full effect in this state. Kniepkamp v. Richards, 192 Ga. 509, 16 S.E.2d 24 (1941).

- If there is no apparent change in status of parties before institution of proceeding in this state, decree of foreign state awarding custody will not be changed if court had jurisdiction of subject matter and of parties. Hammond v. Hammond, 90 Ga. 527, 16 S.E. 265 (1892); Brandon v. Brandon, 154 Ga. 661, 115 S.E. 115 (1922).

- Absent contrary agreement, custodial parent may determine religious training children are to receive. Appelbaum v. Hames, 159 Ga. App. 552, 284 S.E.2d 58 (1981).

Courts should be loath to interfere with religious training sanctioned by custodian, since no end of difficulties would arise if judges sought to prescribe or proscribe selection of a religious faith made by a custodial parent. Appelbaum v. Hames, 159 Ga. App. 552, 284 S.E.2d 58 (1981).

- In a divorce action, a trial court did not abuse the court's discretion in making a husband the primary physical custodian under O.C.G.A. § 19-9-3(a)(3) because the wife had been romantically involved with a married man prior to the divorce, the wife intended to go back to school full-time to attain a bachelor's degree and a law degree, and the wife had threatened the life of a neighbor; the husband intended to remain in the marital home and was seeking to transfer from his position as a commercial airline pilot to a position in the flight training department. Rembert v. Rembert, 285 Ga. 260, 674 S.E.2d 892 (2009).

- Evidence that a father had left his wife and four young children with their relatives in Texas with no job, money, or home, and then returned to Georgia where he obtained a unilateral divorce, along with evidence that he did not support the children and seldom visited the children, supported a trial court's finding that a change in custody to the mother was in the children's best interests under O.C.G.A. § 19-9-3(a)(3). Saravia v. Mendoza, 303 Ga. App. 758, 695 S.E.2d 47 (2010).

4. Finality of Award

Custody decree is conclusive absent change of circumstances.

- Judgment in proceeding between parents to secure custody of minor children is conclusive upon the parents unless a material change of circumstances affecting the welfare of the children is made to appear. Kniepkamp v. Richards, 192 Ga. 509, 16 S.E.2d 24 (1941); Brooks v. Thomas, 193 Ga. 696, 19 S.E. 497 (1942); Jordan v. Jordan, 195 Ga. 771, 25 S.E.2d 500 (1943); Fortson v. Fortson, 197 Ga. 699, 30 S.E.2d 165 (1944); Handley v. Handley, 204 Ga. 57, 48 S.E.2d 827 (1948).

Doctrine of res judicata applies in custody case when award of custody has been made; and judge may thereafter exercise discretion as to custody of children only so far as there may be new and material conditions and circumstances substantially affecting interest and welfare of children. Benefield v. Benefield, 216 Ga. 593, 118 S.E.2d 464 (1961); Adams v. Heffernan, 217 Ga. 404, 122 S.E.2d 735 (1961).

Conclusiveness of custody decree relates to status existing at time of rendition of such judgment. Handley v. Handley, 204 Ga. 57, 48 S.E.2d 827 (1948).

Award of custody of children in divorce decree is binding upon parties thereto upon principles of res judicata under facts then existing. Durden v. Durden, 224 Ga. 417, 162 S.E.2d 385 (1968).

- When on grant of divorce between parents, custody of minor children was awarded to mother, the fact that decree as to custody was based upon agreement did not deprive decree of usual attribute of conclusiveness. While in all such cases paramount issue is welfare of children, doctrine of res adjudicata is nevertheless applicable; and when award has been made, the judge may thereafter exercise discretion as to custody of children only so far as there may be new and material conditions and circumstances substantially affecting their interest and welfare. Fortson v. Fortson, 195 Ga. 750, 25 S.E.2d 518 (1943), later appeal, 197 Ga. 699, 30 S.E.2d 165 (1944).

- Court can make a final disposition of minor children of the parties only when a divorce is granted. Thus, the trial court erred in entering a "Permanent Order of Custody" before a divorce was granted. Rowe v. Rowe, 195 Ga. App. 493, 393 S.E.2d 750 (1990).

- An order modifying custody, issued following a "temporary" hearing under USCR 24.5, was final. In a post-decree custody modification action authorized by a prior version of O.C.G.A. § 19-9-1(b), the trial court was without authority to enter a "temporary" custody award. Hightower v. Martin, 198 Ga. App. 855, 403 S.E.2d 862 (1991), but see Massey v. Massey, 227 Ga. App. 906, 490 S.E.2d 205 (1997).

Fitness of parties seeking custody of minor children is always a proper subject of inquiry. Adams v. Heffernan, 217 Ga. 404, 122 S.E.2d 735 (1961).

- When the trial court determines that both parents are fit and equally capable of caring for the child, the court must consider joint custody but is not required to enter such an order unless the court specifically finds that to do so would be in the best interest of the child. Baldwin v. Baldwin, 265 Ga. 465, 458 S.E.2d 126 (1995).

- In a child custody dispute, there was some evidence in the record, including the father's positive interactions with the daughter and the mother's past misbehavior, to support the trial court's decision to award joint physical custody to both parents, with the mother retaining primary physical custody. Bridger v. Franze, 348 Ga. App. 227, 820 S.E.2d 223 (2018).

- Father cannot be considered unfit merely because he has not maintained a close relationship with his daughter during former wife's custody of child since it appears that such relationship was made difficult, if not impossible, by the attitude and behavior of the mother. Knox v. Knox, 226 Ga. 619, 176 S.E.2d 712 (1970).

Husband's alcoholism and resulting cruel treatment of wife and children are relevant to custodial fitness. Weaver v. Weaver, 238 Ga. 101, 230 S.E.2d 886 (1976).

- Mother's dating man with whom she had a sexual relationship did not render her unfit in the absence of any evidence of cohabitation or of open sexual activity, rendering the trial court's finding of meretricious relationship erroneous and the child's independent selection of the mother as her guardian controlling. Saxon v. Saxon, 207 Ga. App. 471, 428 S.E.2d 376 (1993).

- While commission of crime might not absolutely forfeit father's right to custody for all time, being a prisoner on parole makes him a person unfit to care for his child. Yancey v. Watson, 217 Ga. 215, 121 S.E.2d 772 (1961).

- Judgment that there has been an improvement in health of mother and that such improvement has progressed to extent that she should have partial custody of children on stated occasions consistent with their best interests and welfare is necessarily a holding that she was not a fit and proper person to have complete custody of children. Northcutt v. Northcutt, 220 Ga. 245, 138 S.E.2d 377 (1964).

- Unless evidence demands finding contrary to trial court's judgment that parent is fit or unfit, judgment of trial court on such issue is conclusive and will not be disturbed on appeal. Hardy v. Hardee, 225 Ga. 585, 170 S.E.2d 417 (1969); Weaver v. Weaver, 238 Ga. 101, 230 S.E.2d 886 (1976).

- Trial court, which had found that the husband was a suitable primary physical custodian, did not err in awarding primary physical custody to the wife; when a trial court found both parents to be fit custodians, the court's decision assigning primary physical custody to one would not be disturbed absent an abuse of discretion, which had not been shown here. Alejandro v. Alejandro, 282 Ga. 453, 651 S.E.2d 62 (2007).

- Provision in a divorce agreement prohibiting either party from having unrelated overnight guests of the opposite gender while the parties' children were present was not overly broad or unduly burdensome, nor did the provision violate public policy, and a trial court did not err in enforcing the provision and finding the mother in contempt for the provision's violation. Norman v. Norman, 329 Ga. App. 502, 765 S.E.2d 677 (2014).

Selection by Child

Child selection provision constitutional.

- Child selection provision of former Code 1933, § 74-107 (see now O.C.G.A. § 19-9-3) did not violate Ga. Const. 1976, Art. I, Sec. II, Para. IV (see now Ga. Const. 1983, Art. I, Sec. II, Para. III). Froug v. Harper, 220 Ga. 582, 140 S.E.2d 844 (1965).

Step-father is not parent within the meaning of O.C.G.A. § 19-9-3. In re A.P.H., 236 Ga. App. 762, 514 S.E.2d 46 (1999).

Giving child choice provides means of changing custody without showing changed conditions and circumstances. Froug v. Harper, 220 Ga. 582, 140 S.E.2d 844 (1965).

- In reading O.C.G.A. § 19-9-3(a)(4) and (5) so as to give these two sections sensible and intelligent effect, the court of appeals held that a trial court retains exclusive authority to grant joint physical custody; thus, when the parties' 14-year-old child specifically requested that the parties be awarded joint legal and physical custody, the trial court properly held that the election was invalid because the election interfered with the court's authority. Sharpe v. Perkins, 284 Ga. App. 376, 644 S.E.2d 178 (2007), cert. denied, No. S07C1123, 2007 Ga. LEXIS 509 (Ga. 2007).

- Provision which gives child who has reached age of 14 years the right to select parent with whom the child desires to live, unless such parent is not a fit and proper person to have custody of the child, applies only when custody of minor child is in controversy between parents. Fort v. Alewine, 223 Ga. 359, 155 S.E.2d 12 (1967).

- No parental right of custody by judgment or decree can defeat right of child reaching 14 years of age to select parent with whom that child desires to live. Adams v. Adams, 219 Ga. 633, 135 S.E.2d 428 (1964); Harbin v. Harbin, 238 Ga. 109, 230 S.E.2d 889 (1976).

- Though child 15 years of age has right to select which parent the child desires to live with, the trial judge must determine what is in the best interest, welfare, and happiness of the child; and in making this determination the judge has wide latitude and discretion. Pritchett v. Pritchett, 219 Ga. 635, 135 S.E.2d 417 (1964).

- Language of former Code 1933, § 74-107 (see now O.C.G.A. § 19-9-3) allowing selection, by child who has reached age of 14 years, of parent with whom he or she desires to live is controlling save and except in one situation, which is when parent so selected is determined by the trial court not to be a fit and proper custodian. Froug v. Harper, 220 Ga. 582, 140 S.E.2d 844 (1965).

Right of selection of child who has reached 14 years of age can only be defeated by showing of present unfitness. Harbin v. Harbin, 238 Ga. 109, 230 S.E.2d 889 (1976).

Since there were no allegations of parental unfitness, a 14-year-old child was entitled to select which parent to live with; therefore, the trial court properly approved the parents' settlement agreement that reflected the child's desire to change residential custodians. Ford v. Hanna, 293 Ga. App. 863, 668 S.E.2d 271 (2008).

- In a child custody case, because the parties' child originally chose to live with the father in December 2015, the child could not change the child's mind for two years following that date, December 2017, and the mother's March 2016 motion to modify, to the extent the motion was based on O.C.G.A. § 19-9-3(a)(5), should have been denied as premature. Edler v. Hedden, 344 Ga. App. 628, 811 S.E.2d 434 (2018).

In the father's action to modify custody, the trial court did not misapply O.C.G.A. § 19-9-3(a)(5) by failing to honor the fourteen year old child's election to live with the father despite finding the father to be a fit parent because fitness was not a consideration under O.C.G.A. § 19-9-3 and the trial court found that maintaining continuity in the child's life, which remaining with the mother entailed, was in the child's best interest. Belknap v. Belknap, 351 Ga. App. 748, 833 S.E.2d 135 (2019).

- Trial court did not err in denying the father's request to modify custody as to the 15-year-old child as, despite the fact that the child expressed an interest in remaining with the father, there was some evidence that the child's election was not sincere, including the guardian ad litem's testimony that the guardian thought the children's letters to the guardian were written with assistance of the father and the father's family. Driver v. Sene, 327 Ga. App. 275, 758 S.E.2d 613 (2014).

- Child's selection of parent with whom child desires to live, when child has reached 14 years of age, is controlling absent finding that such parent is unfit. Without finding of unfitness, child's selection must be recognized and court has no discretion to act otherwise. Harbin v. Harbin, 238 Ga. 109, 230 S.E.2d 889 (1976).

- To hold that prior adjudication of unfitness is res judicata or evidence of present unfitness would overly restrict statutory right of child who has reached 14 years of age to select parent with whom the child wishes to live. Harbin v. Harbin, 238 Ga. 109, 230 S.E.2d 889 (1976).

- When trial court awards 14-year-old child to parent selected by such child as parent with whom the child desires to live, it is tantamount to finding that such parent is fit, just as denial of such child's request must be construed as finding that such parent is unfit. Hardy v. Hardee, 225 Ga. 585, 170 S.E.2d 417 (1969).

Parent resisting child's selection bears burden of proving that parent selected is unfit. Harbin v. Harbin, 238 Ga. 109, 230 S.E.2d 889 (1976).

Change of Custody

1. In General

- When award of custody is made to parent in divorce action and subsequently there is a change of circumstances and conditions substantially affecting welfare of child, parent to whom custody was awarded does not have vested right of custody that will defeat further action by courts. Adams v. Adams, 219 Ga. 633, 135 S.E.2d 428 (1964).

- When divorce decree, awarding custody to father, vests prima facie right of custody in father, that prima facie right of custody may be forfeited by actions of father subsequent to rendition of decree. Sessions v. Oliver, 204 Ga. 425, 50 S.E.2d 54 (1948).

- Decree awarding custody cannot anticipate changes which may occur in condition of parents, or in their character and fitness for care of their children. For this reason such decree is at best but prima facie evidence of legal right to the child's custody; and is not conclusive in subsequent proceedings when neglect or mistreatment of child, or unfitness of parent since date of decree, is involved. Williams v. Crosby, 118 Ga. 296, 45 S.E. 282 (1903); Barlow v. Barlow, 141 Ga. 535, 81 S.E. 433, 52 L.R.A. (n.s.) 683 (1914); Milner v. Gatlin, 143 Ga. 816, 85 S.E. 1045, 1916B L.R.A. 977 (1915); Gillens v. Gillens, 148 Ga. 631, 97 S.E. 669 (1918); Brandon v. Brandon, 154 Ga. 661, 115 S.E. 115 (1922).

- Change of status may authorize a different judgment in subsequent proceeding. Capacity, ability, or fitness of party to whom child was awarded in previous proceeding may thereafter become entirely different. The status of both such parties and the child may have changed. Change of circumstances may render change necessary in order to promote health, happiness, or welfare of child. Handley v. Handley, 204 Ga. 57, 48 S.E.2d 827 (1948).

- Once permanent child custody award has been entered, test for use by trial court in change of child custody suits is whether there has been a change of conditions affecting welfare of child. Gazaway v. Brackett, 241 Ga. 127, 244 S.E.2d 238 (1978).

- Judgment of court of competent jurisdiction of sister state may be modified only when it appears that there has been such change in conditions since original decree as would authorize modification of similar judgment rendered by courts of this state. Kniepkamp v. Richards, 192 Ga. 509, 16 S.E.2d 24 (1941); Bowen v. Bowen, 223 Ga. 800, 158 S.E.2d 233 (1967), overruled on other grounds, Crumbley v. Stewart, 238 Ga. 169, 231 S.E.2d 772 (1977).

- Trial court erred when the court included a self-executing change of custody in favor of the mother effective 18 months after the court's award of primary physical custody to the father because the provision was void since it did not provide for a determination whether the custody change is in the best interest of the child at the time the change would automatically occur. Bankston v. Warbington, 332 Ga. App. 29, 771 S.E.2d 726 (2015).

Portion of judgment directing a self-executing modification of child custody if the mother chose to move out of state was ordered struck because the self-executing change in custody and visitation should not have been included as any future change in the custody and visitation arrangement would be subject to judicial scrutiny into the child's best interests as provided by law. Jones v. Ahmad, 347 Ga. App. 192, 818 S.E.2d 263 (2018).

- See Banister v. Banister, 240 Ga. 513, 241 S.E.2d 247 (1978).

- Generally, court where legal custodian resides has exclusive right to award change of custody; this is true whether legal custodian lives in another state or in another county, and irrespective of physical presence of child. Matthews v. Matthews, 238 Ga. 201, 232 S.E.2d 76 (1977).

Proceeding to change custody may not be brought in county in which noncustodial parent resides. Matthews v. Matthews, 238 Ga. 201, 232 S.E.2d 76 (1977).

- Despite child's attaining age of 14 and residing in Georgia with noncustodial parent, Georgia court is not authorized to relitigate issue of legal custody. Only court where custodial parent resides has right to award change in custody. Bayard v. Willis, 241 Ga. 459, 246 S.E.2d 315 (1978).

Petition seeking custody change without alleging changed circumstances is subject to dismissal on oral motion. Fuller v. Fuller, 197 Ga. 719, 30 S.E.2d 600 (1944).

- Self-executing change in custody failed to provide for a determination whether the custody change was in the best interest of the child at the time the change would automatically occur; thus, the change violated Georgia's public policy as expressed in O.C.G.A. § 19-9-3 that a trial court take into account the factual situation at the time the custody modification is sought, with the court's paramount concern always remaining the best interests and welfare of the minor child. Bankston v. Warbington, Ga. App. , S.E.2d (Mar. 24, 2015).

In Scott v. Scott, 276 Ga. 372 (2003), the Supreme Court of Georgia has held that a self-executing change of custody designed to take effect on a triggering event such as remarriage or relocation violates O.C.G.A. § 19-9-3(a)(2), which requires that a trial court exercise the court's discretion concerning a change in custody in light of the child's best interests as evaluated at the time of the proposed change. Bankston v. Warbington, Ga. App. , S.E.2d (Mar. 24, 2015).

Trial court's inclusion of a self-executing change of custody contingent on the father's relocation to Atlanta was an abuse of discretion because the court relied on a third party's future exercise of discretion and the best interests of the child at the future time could not be ascertained. Bridger v. Franze, 348 Ga. App. 227, 820 S.E.2d 223 (2018).

- Self-executing change in custody to the mother failed to provide for a determination whether the custody change was in the best interest of the child at the time the change would automatically occur; thus, the change violated Georgia's public policy as expressed in O.C.G.A. § 19-9-3. Bankston v. Warbington, 332 Ga. App. 29, 771 S.E.2d 726 (2015).

- In action to change custody, evidence of unfitness must be confined to matters transpiring subsequent to decree. Mallette v. Mallette, 220 Ga. 401, 139 S.E.2d 322 (1964).

- While proof of changed conditions and that child's welfare will be protected by changing custody will authorize judgment to that effect, since evidence does not demand finding to that effect, matter is left to discretion of the trial judge. Floyd v. Floyd, 218 Ga. 606, 129 S.E.2d 786 (1963).

- On appeal, when permanent child custody award has been made, appellate court will not reverse if there is any reasonable evidence to support change in custody. Dearman v. Rhoden, 235 Ga. 457, 219 S.E.2d 704 (1975); Gazaway v. Brackett, 241 Ga. 127, 244 S.E.2d 238 (1978).

- When nonresident parent who has been awarded custody of child by court order enters this state to regain that child from noncustodial parent and files habeas corpus petition, trial court may not reconsider question of legal custody. Bayard v. Willis, 241 Ga. 459, 246 S.E.2d 315 (1978).

- In a child custody modification proceeding, the trial court erred by awarding attorney fees to the father in the amount of $4,000 under O.C.G.A. § 19-9-3 as the award was not supported by the record since the trial court did not explain the statutory basis for the award and did not enter any findings necessary to support the award as required by O.C.G.A. § 19-6-15(k)(5). Kuehn v. Key, 325 Ga. App. 512, 754 S.E.2d 103 (2014).

- In a father's petition for a change of custody, in which he requested the appointment of a guardian ad litem and did not prevail, the trial court did not err in determining that the father should pay two-thirds of the guardian ad litem's fees of $6,200 and the mother should pay one-third, pursuant to O.C.G.A. § 19-9-3(g) and Ga. Unif. S. Ct. R. 24.9(8)(g); the father was also ordered to pay a portion of the mother's attorney's fees. Gordon v. Abrahams, 330 Ga. App. 795, 769 S.E.2d 544 (2015).

- Awards in the amount of $2,474 and $11,865 which a Georgia court made under O.C.G.A. § 19-9-3 to a Chapter 7 debtor's ex-husband and a guardian ad litem, respectively, in a change of custody proceeding the ex-husband filed against the debtor, were nondischargeable under 11 U.S.C. § 523 because they were "in the nature of support" for the child. Rackley v. Rackley (In re Rackley), 502 Bankr. 615 (Bankr. N.D. Ga. 2013).

2. Application

Best interests of child are controlling as to custody changes.

- On petition of divorced parent to change custody of child based on new conditions, main question to consider is interests and welfare of children. Elders v. Elders, 206 Ga. 297, 57 S.E.2d 83 (1950).

While self-executing change of custody provisions are not expressly prohibited by statutory law, any such provision that fails to give paramount import to the child's best interests in a change of custody as between parents violates Georgia's public policy as expressed in the statute; therefore, such a provision that provided for an automatic change of custody upon a custodial parent's move from a particular county could not stand. Scott v. Scott, 276 Ga. 372, 578 S.E.2d 876 (2003).

- When change of circumstances is alleged, trial judge may transfer case to juvenile court for investigation. Slate v. Coggins, 181 Ga. 17, 181 S.E. 145 (1935); Fortson v. Fortson, 197 Ga. 699, 30 S.E.2d 165 (1944).

When evidence of changed circumstances conflicts, disposition by trial court will not be disturbed. Bosson v. Bosson, 223 Ga. 793, 158 S.E.2d 231 (1967).

- Decree in divorce suit awarding custody to mother is prima facie evidence in her favor and father cannot regain custody without showing affirmatively that a material change in circumstances affecting welfare of children occurred since original decree. Fortson v. Fortson, 195 Ga. 750, 25 S.E.2d 518 (1943), later appeal, 197 Ga. 699, 30 S.E.2d 165 (1944).

Decree in divorce suit, granted by court having jurisdiction of subject matter and of parties, and awarding custody of child to one parent, is at best but prima facie evidence of legal right to child's custody, but is not conclusive when neglect or mistreatment of child, or unfitness of parent since date of decree, is involved. Fortson v. Fortson, 200 Ga. 116, 35 S.E.2d 896 (1945).

- After custody decree, parents themselves cannot by new agreement transfer custody without consent of court as representative of state and children. Nor would their private recitals in an attempted agreement be binding upon court as evidence of change in condition. Fortson v. Fortson, 195 Ga. 750, 25 S.E.2d 518 (1943), later appeal, 197 Ga. 699, 30 S.E.2d 165 (1944).

- Whether there are changed conditions affecting welfare of child occurring after rendition of former final custody judgment which will warrant changing custody is essentially a fact question in each individual case. Dearman v. Rhoden, 235 Ga. 457, 219 S.E.2d 704 (1975).

- Change of circumstances that would render prior judgment inconclusive is not necessarily limited to change in moral or financial condition of parent to whom initial award was made. Handley v. Handley, 204 Ga. 57, 48 S.E.2d 827 (1948); Adams v. Heffernan, 217 Ga. 404, 122 S.E.2d 735 (1961).

- Change of circumstances that would render prior judgment inconclusive includes any new and material change in circumstances of either parent or of children which might substantially affect health, happiness, or welfare of children. Handley v. Handley, 204 Ga. 57, 48 S.E.2d 827 (1948).

- Trial court did not err in granting the father's petition for a change in the custody of the younger child as the evidence showed one or more material changes in circumstances that could affect the child because the mother now worked outside the home, and, if the child resided with the mother, the child would leave the home before 5:00 A.M. four days a week to spend approximately 11 hours in day care; and the father had married, was employed full-time with the state, no longer resided with the father's parents, and the father's wife was able to stay at home with the child two days a week. Mashburn v. Mashburn, 353 Ga. App. 31, 836 S.E.2d 131 (2019).

- In order to change award of custody, trial court does not necessarily have to find that legal custodian has forfeited parental rights under former Code 1933, § 74-108 or §§ 74-109 and 74-110 (see now O.C.G.A. § 19-7-1 or O.C.G.A. § 19-7-4). Adams v. Heffernan, 217 Ga. 404, 122 S.E.2d 735 (1961); Dearman v. Rhoden, 235 Ga. 457, 219 S.E.2d 704 (1975).

- When custody of minor child awarded by divorce decree is forfeited in mother by reason of her unfitness, custody automatically inures to father, unless it is lost in one of the modes provided by law, or unless he is "unfit" to have custody. Hill v. Rivers, 200 Ga. 354, 37 S.E.2d 386 (1946); Knox v. Knox, 226 Ga. 619, 176 S.E.2d 712 (1970).

Parent's surrender of custody is change in condition authorizing court to reconsider question of custody. Askew v. Askew, 212 Ga. 46, 90 S.E.2d 409 (1955); Wilt v. Wilt, 229 Ga. 658, 193 S.E.2d 833 (1972).

Trial court did not err in granting a father's petition for a change of custody and awarding the father primary physical custody of his child because the mother voluntarily surrendered physical custody and control over the child to the maternal grandmother, resulting in a material change in condition; after the entry of a consent order modifying the father's visitation rights, the grandmother limited some of the father's visitation with the child, the mother and grandmother exhibited an ongoing pattern of excluding the father from important medical decisions affecting the child, and the mother and grandmother failed to notify the father whenever the mother executed a power of attorney in loco parentis in favor of the grandmother. Shotwell v. Filip, 314 Ga. App. 93, 722 S.E.2d 906 (2012).

Trial court did not abuse the court's discretion by denying a mother's motion for a new trial with regard to a custody modification based on the mother voluntarily giving up custody because there was no affidavit as to the mother's mental condition attached to the motion and the fact that the father could be deployed for an extensive period was clearly contemplated in the court's final order and incorporated parenting plan. Carr-MacArthur v. Carr, 296 Ga. 30, 764 S.E.2d 840 (2014).

When custodial parent dies, prima facie right of custody automatically enures to surviving parent. Hill v. Rivers, 200 Ga. 354, 37 S.E.2d 386 (1946).

- Allegations that father had moved children over 1000 miles away from mother's residence, that when she travels that distance to see children, he refuses to let her visit them or lets her see them only when it pleases him, that he has insulted her and intimidated her, has prejudiced children against her, instructed them not to call her "mother" and told them that she was not their mother, were such allegations of fact as would support conclusion that he was an unfit person to have their custody and, if proven to be true, to authorize a change in custody. Jones v. White, 209 Ga. 412, 73 S.E.2d 187 (1952).

In an action for change of custody, the judge could conclude from the evidence that the father's behavior toward the mother, in large part contemptuous of the court's authority, and his negative attitude and overt antipathy toward her relationship with the children, warranted modification of custody. Arp v. Hammonds, 200 Ga. App. 715, 409 S.E.2d 275, cert. denied, 200 Ga. App. 895, 409 S.E.2d 275 (1991).

In a child custody case involving an eleven-year-old girl who had always lived with her mother, the trial court did not abuse the court's discretion in granting custody to the father in New Mexico, given the mother's unwillingness or inability to facilitate the daughter's relationship with her father, O.C.G.A. § 19-9-3(a)(3)(N), and the daughter's apparent fabrication of accusations against the father. Wilson v. Wilson, 338 Ga. App. 891, 792 S.E.2d 139 (2016).

- Father was properly denied visitation when there was evidence that the father had not seen the child in 18 months, the father had been arrested twice for operating a vehicle while under the influence of alcohol or drugs, and had been cited for failure to maintain a lane while driving, and the father failed to demonstrate that the child was a priority in the father's life. Bishop v. Baumgartner, 292 Ga. 460, 738 S.E.2d 604 (2013).

- Trial court properly held a parent in contempt in a post-divorce matter as the parent acknowledged that the parent refused to return the parties' children to the custodial parent after summer visitation and helped the children obtain legal counsel to file a modification of custody proceeding, which was prohibited by prior trial court orders. Further, the custodial parent properly filed the contempt petition in the county wherein that parent resided. Because the custodial parent was successful in having the other parent found in contempt, the custodial parent was properly awarded attorney fees. Brochin v. Brochin, 294 Ga. App. 406, 669 S.E.2d 203 (2008).

- Trial court did not abuse the court's discretion in denying a mother's petition seeking to modify child custody by moving the child to Ohio from Georgia because although the trial court explicitly relied upon the guardian ad litem's recommendation in denying the petition, the court issued the court's own findings of fact in the case relating to the mother's tenuous connection with the State of Ohio, the father's strong family connections in Georgia, and the child's performance in the child's current education environment. Jones v. Ahmad, 347 Ga. App. 192, 818 S.E.2d 263 (2018).

- It is not ground upon which to deny custody to father, who has not lost such right in any of the modes provided by law, that he may feel it his duty to bring his child up in his own faith, even though child has been taught a different faith heretofore under mother's custody. Knox v. Knox, 226 Ga. 619, 176 S.E.2d 712 (1970).

Remarriage of parent, alone, is insufficient to authorize modification of award of custody; an engagement to marry would likewise be insufficient. North v. North, 209 Ga. 883, 76 S.E.2d 617 (1953).

Remarriage, alone, of one of parties is not such change of circumstances affecting welfare of child as will justify change in custody. Fennell v. Fennell, 209 Ga. 815, 76 S.E.2d 387 (1953).

Remarriage and removal of child to another state not basis for modification of custody decree. Mercer v. Foster, 210 Ga. 546, 81 S.E.2d 458 (1954).

- Trial court's order modifying custody of the parties' daughter was reversed as: (1) the father was married when the mother was granted primary physical custody, the mother's lesbian relationships were the primary focus of the original custody hearing, and the mother was in a more stable relationship than when she was awarded primary physical custody; (2) in granting the modification petition, the mother was originally given only visitation rights, but later the daughter's wish to spend equal time with each parent was granted; and (3) still later, the mother was not ordered to change her lifestyle; the trial court implicitly reversed itself on the finding that the court had held justified a custody change and merely reduced the child's time with the mother and her partner. Moses v. King, 281 Ga. App. 687, 637 S.E.2d 97 (2006), cert. dismissed, No. S07C0272, 2007 Ga. LEXIS 84 (Ga. 2007).

- Even if there has been marked improvement in health, conduct, and moral perspective of parent, this alone does not as a matter of law require that minor children of parties be awarded to that parent's custody. Floyd v. Floyd, 218 Ga. 606, 129 S.E.2d 786 (1963).

- Temporary, voluntary relinquishment of actual custody to legitimate child's father for period of time necessary for mother's recuperation from back injuries and sickness does not constitute acquiescence to permanent custody in father so as to amount to abandonment as a matter of law. Porter v. Johnson, 242 Ga. 188, 249 S.E.2d 608 (1978).

- When, on hearing of wife's petition seeking custody of her two minor children, upon alleged change in conditions since judgment awarding custody to husband, only evidence of change was husband's admission that there was general talk in the community about the mother and, knowing that others would tell the children, he told them that she was immoral and did not love them, it was an abuse of discretion to award custody to wife upon this ground alone. Elders v. Elders, 206 Ga. 297, 57 S.E.2d 83 (1950).

- Evidence that children preferred to live with their father rather than move to another state with their mother supported a change in custody of the children from their mother to their father. Elder v. Elder, 184 Ga. App. 167, 361 S.E.2d 46 (1987).

- Award of custody of the 14-year-old child to father was a sufficient change in condition to warrant change of custody of a younger child to the father as well where the trial court found that the younger child had become dependent upon the 14-year-old and that it was in the younger child's best interest that the child not be separated from the older child after an election to live with her father. Parkerson v. Parkerson, 167 Ga. App. 265, 306 S.E.2d 97 (1983).

- When a 15-year-old daughter indicated that she wanted to change her custody arrangement and live with her mother, and the mother was found to be a fit and proper custodial parent, such change was ordered pursuant to O.C.G.A. § 19-9-1; upon such custody change of the older daughter, a material change in circumstances occurred such that the trial court should have made a determination whether it was in the younger daughter's best interests to also change custody to the mother as she wished and pursuant to O.C.G.A. § 19-9-3(a)(2). Durham v. Gipson, 261 Ga. App. 602, 583 S.E.2d 254 (2003).

Fact that a parent was in arrears on child support payments, while a factor the trial court could consider in determining what was in the best interest of the children and what would best promote their welfare and happiness, did not mandate that the other parent retain custody of the children. Green v. Krebs, 245 Ga. App. 756, 538 S.E.2d 832 (2000).

- Trial court's order amending an earlier child custody modification judgment because the order contained terms not pronounced by the trial court in the court's oral ruling was proper under O.C.G.A. § 19-9-3(b) based on the evidence showing that the original order did not accurately reflect the trial court's ruling; however, the trial court's order neither set forth nor incorporated a parenting plan as required by O.C.G.A. § 19-9-1(b), requiring remand to the trial court. Epstiner v. Spears, 340 Ga. App. 199, 796 S.E.2d 919 (2017).

- Trial court erred by entering a custody order requiring primary physical custody and final decision making authority alternating annually and automatically because there was no evidence that the terms of the order were in the best interests of the children, and the effect of the order was to require the children to change schools, homes, school friends, and extracurricular activities every year. Oxford v. Fuller, 338 Ga. App. 515, 790 S.E.2d 303 (2016).

- Trial court committed no error in finding that it would be in the child's best interest to live with the father rather than the maternal grandmother because the father presented evidence from a licensed psychologist who opined that the father was a fit and qualified parent to have primary physical custody of the child and would be able to meet the needs of the child in adjusting to a new home; the father had been gainfully employed without a lapse of employment until April 2010 and had been applying for jobs with potential employers, and there was some evidence that the father's wife maintained suitable employment and made adequate income for the family to provide for the child's necessary basic care. Shotwell v. Filip, 314 Ga. App. 93, 722 S.E.2d 906 (2012).

Trial court did not err in granting the father's request to modify custody as to the two children the father had with different mothers because the change was in the children's best interest, based on the father's ability to engage in hands-on parenting and synchronize the two boys' school, sports, and church activities. New v. Goss, 327 Ga. App. 413, 759 S.E.2d 266 (2014).

Trial court did not abuse the court's discretion by modifying child custody in favor of the father because the record before the trial court included evidence and findings that although both parties were capable of providing for the child, the mother had sufficiently undermined the child's relationship with the father to justify a modification of primary physical custody in favor of the father for at least 18 months as in the best interest of the child. Bankston v. Warbington, Ga. App. , S.E.2d (Mar. 24, 2015).

Trial court did not abuse the court's discretion by ordering in a child custody modification proceeding that when the child begins first grade, approximately 16 months after entry of the order, the mother would assume primary physical custody and the father would have regular visitation as although admittedly self-executing, the provision was not open-ended but was based on a planned event that would take place. Lester v. Boles, 330 Ga. App. 711, 769 S.E.2d 133 (2016).

Trial court did not err in modifying custody, visitation, and child support as the father showed that a material change in circumstances adversely affecting the child had occurred because, inter alia, the mother's actions to conceal the location of the mother's residence from the father violated the divorce decree; and the mother's decision to move to another county added to the child's commute time and showed an intention to interfere with the father's relationship with the child; thus, based on the negative impact of those changes on the child, the trial court properly concluded that the child's best interests would be served by a change in the custody arrangement. Lowry v. Winenger, 340 Ga. App. 382, 797 S.E.2d 230 (2017).

- In a child custody modification pursuant to O.C.G.A. § 19-9-3(a)(2), the trial court erred in considering evidence of the father's nolo contendere plea of family violence battery against the child; the plea was not admissible pursuant to O.C.G.A. § 17-7-95(c), and the conduct reflected in the plea occurred prior to the parties' most recent custody order. Wilson v. Perkins, 344 Ga. App. 869, 811 S.E.2d 518 (2018).

- Trial court had a valid basis for considering acts of family violence because the mother provided testimony concerning the incident that prompted the family violence protective order against the father and the trial court was presented with evidence of the father's guilty plea to family violence battery and third degree cruelty to children. Selvage v. Franklin, 350 Ga. App. 353, 829 S.E.2d 402 (2019).

- See Milner v. Milner, 181 Ga. App. 760, 353 S.E.2d 628 (1987).

Joint custody award was properly modified to give a father physical custody because the child was of school age and could no longer rotate between the parents every six months, and the father had a strong support system in Missouri, where the child had spent considerable time and developed a strong bond with the grandparents. Mitcham v. Spry, 300 Ga. App. 386, 685 S.E.2d 374 (2009).

Change of custody was warranted due to a material change in circumstances affecting the child's welfare under O.C.G.A. § 19-9-3(a) because: (1) the mother had abandoned the child; (2) the mother had forged a court order, in an attempt to regain physical custody of the child; and (3) the child had excelled in school while residing with the father. Lynch v. Horton, 302 Ga. App. 597, 692 S.E.2d 34 (2010), cert. denied, 563 U.S. 988, 131 S. Ct. 2447, 179 L. Ed. 2d 1210 (2011).

Trial court did not err in granting a mother's petition for modification of custody and awarding the mother permanent primary physical custody of the parties' child because the trial court's findings that the mother's circumstances had improved dramatically since the divorce and that the father had been held in contempt of court for violation of the visitation order and had taken steps to undermine the mother were supported by the evidence. Viskup v. Viskup, 291 Ga. 103, 727 S.E.2d 97 (2012).

Trial court did not abuse the court's discretion by denying a mother's motion for a new trial with regard to an order changing custody of the parties' one minor child to the father because the mother failed to produce newly discovered evidence, repeatedly interfered with the father's visitation, and the record established that the mother obtained a modification in another county under false pretenses; thus, the mother's credibility had been completely impeached. Fifadara v. Goyal, 318 Ga. App. 196, 733 S.E.2d 478 (2012).

Sole legal custody was properly awarded to the father of two young children, given that the mother shared her home with her boyfriend, encouraged her child to lie about vacationing with the boyfriend, made derogatory remarks about the father in the children's presence, and drank alcohol in the children's presence in violation of her probation. Taylor v. Taylor, 293 Ga. 615, 748 S.E.2d 873 (2013).

Trial court did not abuse the court's discretion by modifying child custody by awarding the father primary custody under O.C.G.A. § 19-9-3(a)(3)(F), (O), (P) and (a)(4)(A) and (B) because the change of custody ruling was supported under the any evidence standard based on testimony from the father, paternal grandmother, and the guardian ad litem's recommendation, who recommended the change in custody to the father as well. Kuehn v. Key, 325 Ga. App. 512, 754 S.E.2d 103 (2014).

Trial court did not abuse the court's discretion by modifying child custody in favor of the father because the record before the trial court included evidence and findings that although both parties were capable of providing for the child, the mother had sufficiently undermined the child's relationship with the father to justify a modification of primary physical custody in favor of the father for at least 18 months as in the best interest of the child. Bankston v. Warbington, 332 Ga. App. 29, 771 S.E.2d 726 (2015).

Trial court was authorized to conclude that there had been a material change in condition since the parties' divorce supporting a modification of custody and that it was in the best interest of the children for sole legal and physical custody of the children to be awarded to the father as the mother had been arrested multiple times since the original custody determination, including arrests for battery, harassing phone calls, criminal trespass, reckless conduct, aggravated assault, aggravated battery, and cruelty to children; and, in contrast, the father had a safe and stable home for the children, no history of arrests, and was employed with a stable job and income. Floyd v. Brown, 338 Ga. App. 520, 790 S.E.2d 307 (2016).

Trial court did not err in modifying custody and awarding sole legal and physical custody to the mother, after considering the father's continued use of methamphetamine, failure to comply with a protective order, pattern of strange behavior, failure to bond with the children, and inappropriate disciplining of the children. Simmons v. Wilson, 343 Ga. App. 857, 806 S.E.2d 267 (2017).

- Change in custody was not in the child's best interests or warranted by a change in circumstances under O.C.G.A. § 19-9-3(a) because even though the parent frequently left the child with a sitter until 10 p.m., this was due to the parent's job and classes to obtain a college degree; the sitter and teachers asserted that the child and parent got along well and that the child was thriving at school and in the child's extracurricular activities; and an investigation revealed that a mark on the child's back occurred while the child was playing with another child at the sitter's and that it was not caused by the parent or the sitter. Lurry v. McCants, 302 Ga. App. 184, 690 S.E.2d 496 (2010).

Trial court did not err in denying a mother's petition for modification of custody because the court applied the correct legal standard when the court concluded that it was not in the children's best interest to modify custody absent a material change in circumstance affecting their well-being; the mother failed to demonstrate that the house where the children lived was inadequate for their needs, that the children's welfare was materially affected by the living arrangements, or that the father's late shifts at work materially affected the children's welfare, and the father had an extensive family network available to the father. Harris v. Williams, 304 Ga. App. 390, 696 S.E.2d 131 (2010), overruled on other grounds, Viskup v. Viskup, 291 Ga. 103, 727 S.E.2d 97 (2012).

Trial court abused the court's discretion by granting a mother's petition to change child custody because the court's findings that the mother had been denied visitation by the father on several occasions was unsupported by the evidence since the mother only testified to one instance when visitation rights were thwarted by the father. Blue v. Hemmans, 327 Ga. App. 353, 759 S.E.2d 72 (2014).

Trial court did not err in finding that there was no change of circumstance justifying modification of child custody based on the mother's involvement with a boyfriend who had a conviction for sexual intercourse with a minor because the father knew of the relationship in March 2011, well before the parties entered into a settlement in June 2011; although the father's home was more pleasant and he was more financially stable, this did not warrant a change of custody. Gordon v. Abrahams, 330 Ga. App. 795, 769 S.E.2d 544 (2015).

Evidence supported the trial court's conclusion that there had been no material change in circumstances affecting the children because, as the mother acknowledged in her brief, the parental discord had been ongoing since before the prior custody award, and the trial court was entitled to determine that the worsening in the communication between the mother and father was not so significant as to rise to the level of a material change in circumstances. Park-Poaps v. Poaps, 351 Ga. App. 856, 833 S.E.2d 554 (2019).

- Order of the trial court granting a couple joint legal custody was vacated because there was nothing in the trial court's order that assisted the reviewing court in its evaluation of whether the trial court properly exercised the court's discretion in modifying the former custody arrangement as the order merely set forth in detail the new custody and child support arrangement, and nothing more. Longino v. Longino, 352 Ga. App. 263, 834 S.E.2d 355 (2019).

Visitation Rights

Portion of custody award concerning visitation may be modified.

- In any case in which judgment has been entered awarding custody of minor, on motion of any party or on motion of court, that portion of judgment concerning visitation rights between parties and their minor children may be subject to review and modification or alteration. Tirado v. Shelnutt, 159 Ga. App. 624, 284 S.E.2d 641 (1981).

Plaintiff ex-husband was correct that the due process clause of the Fourteenth Amendment protected a parent's fundamental right to participate in the care, custody, and management of their children, but he failed to show that O.C.G.A. § 19-9-3 violated his substantive due process rights because neither the U.S. Supreme Court nor the U.S. Court of Appeals for the Eleventh Circuit had held that a state had to impose a specific standard of proof for modification of visitation rights. Gottschalk v. Gottschalk, F.3d (11th Cir. June 16, 2011)(Unpublished).

- Trial court was authorized to eliminate the right of first refusal based on the court's express findings that the provision was not in the child's best interest. Horn v. Shepherd, 292 Ga. 14, 732 S.E.2d 427 (2012).

- Court whose jurisdiction over issues involving custody was first invoked had full authority to determine all such issues, including visitation rights. Tirado v. Shelnutt, 159 Ga. App. 624, 284 S.E.2d 641 (1981).

- Court in which petition to change custody is brought may also modify visitation rights. Tirado v. Shelnutt, 159 Ga. App. 624, 284 S.E.2d 641 (1981).

Trial court erred in dismissing a father's contempt petition filed over a year after an earlier petition remained pending; under O.C.G.A. § 19-9-3(b), the trial court had the authority to modify visitation in the contempt proceeding, and relevant information concerning a child custody matter must be received up until the very time that the court rules. Dennis v. Dennis, 302 Ga. App. 791, 692 S.E.2d 47 (2010).

In a custody dispute, a trial court did not abuse the court's discretion in modifying a father's visitation rights, O.C.G.A. § 19-9-3(b), by eliminating custody and parenting time because the father's attempted voluntary relinquishment of visitation and other parental rights constituted a material change in condition. Smith v. Curtis, 316 Ga. App. 890, 730 S.E.2d 604 (2012).

Trial court did not abuse the court's discretion in denying the father's motion to modify visitation because there was substantial evidence of the father and the father's wife's continued failure to comply with the court's orders pertaining to their harassment and degradation of the mother despite the harm and detriment the degradation caused the child and the father refused to work with the child's psychologist or pay for another qualified psychologist in order to obtain additional or unsupervised visitation. Vines v. Vines, 292 Ga. 550, 739 S.E.2d 374 (2013).

Under O.C.G.A. § 19-9-3(b), a court may periodically review and modify the visitation portion of a custody judgment without a showing of a change in any material condition or circumstance. Stanford v. Pogue, 340 Ga. App. 86, 796 S.E.2d 313 (2017).

- Trial court did not abuse the court's discretion by ordering the father to have supervised visitation because there was evidence of several prior instances of family violence by the father that enabled the trial court to determine, in the court's discretion, that supervised overnight visitation was warranted in the child's best interest and the record showed that many overnight visits were already supervised by the father's mother, and the father's mother was apparently willing and able to supervise overnight visits. Spirnak v. Meadows, Ga. App. , 844 S.E.2d 482 (2020).

Because the father requested that the trial court make findings of fact and conclusions of law prior to the hearing on the petition for modification of custody, child support, and visitation, the father was entitled to the findings particularly given that the trial court denied the father any visitation or contact with the child, and therefore the portion of the order denying the father's request for a modification of visitation was vacated. Selvage v. Franklin, 350 Ga. App. 353, 829 S.E.2d 402 (2019).

Court in which contempt action is brought has authority to modify visitation rights. Tirado v. Shelnutt, 159 Ga. App. 624, 284 S.E.2d 641 (1981).

- Order holding a mother in criminal contempt was upheld on appeal as a result of the mother's interference with the father's visitation time and since the trial court did not exceed the limit of 20 days of imprisonment as set forth in O.C.G.A. § 15-6-8(5), the punishment imposed did not exceed that which was authorized. Stanford v. Pogue, 340 Ga. App. 86, 796 S.E.2d 313 (2017).

- Statute allowed trial judge, who had made award of permanent custody with reasonable visitation privileges, to provide specific visitation privileges once in a two-year period following the date of entry of such judgment. Edwards v. Edwards, 237 Ga. 779, 229 S.E.2d 632 (1976).

- Any conflict between the provisions of O.C.G.A. §§ 19-9-3(b) and19-19-1(b) with those of O.C.G.A. § 19-9-23, insofar as seeking modification of visitation rights by motion is concerned, is harmonized by holding that the former come into play only when jurisdiction and venue are also proper. Bennett v. Wood, 188 Ga. App. 630, 373 S.E.2d 645 (1988).

Inasmuch as the record shows that this divorce action terminated with the entry of a final judgment and decree; that the wife subsequently changed her residence to another county; and that the husband filed his motion to modify outside the term of court, the trial court erred in ruling on the husband's motion to modify visitation. Ward v. Ward, 194 Ga. App. 669, 391 S.E.2d 480 (1990).

Trial court did not err in modifying a visitation schedule because the father was afforded more than one opportunity to respond to the mother's motion for modification; the father waived any challenge to venue by failing to ever object to venue, or otherwise raise the issue, in the trial court. Cross v. Ivester, 315 Ga. App. 760, 728 S.E.2d 299 (2012).

- Modification to visitation could be made in a contempt proceeding as provided in O.C.G.A. § 19-9-3(b), and the wife was not required to be given notice and time to prepare an adequate response to a motion to modify child visitation because such notice was not required by § 19-9-3(b). Weeks v. Weeks, 324 Ga. App. 785, 751 S.E.2d 575 (2013).

Motion for contempt is ancillary to a pending visitation interference case, and no findings of fact or conclusions of law are required. Stanford v. Pogue, 340 Ga. App. 86, 796 S.E.2d 313 (2017).

- Trial court's self-executing change in visitation provision in parties' divorce decree could not stand since it did not provide for a determination as to whether the visitation change was in the best interests of the parties' child and since it did not connect the triggering event to those best interests; the provision simply provided for a change in the wife's visitation if she ever moved out of Georgia, without any further limitations as to time or other considerations. Rumley-Miawama v. Miawama, 284 Ga. 811, 671 S.E.2d 827 (2009).

- Trial judge is empowered to award custody to nonresident for one month each year, and to resident parent for other 11 months; and whether judge requires bond of nonresident for return of child is a matter solely in the judge's discretion. Pruitt v. Butterfield, 189 Ga. 593, 6 S.E.2d 786 (1940).

Visitation rights should not be made to depend upon payment of child support or alimony. Price v. Dawkins, 242 Ga. 41, 247 S.E.2d 844 (1978).

- Requiring the father to pay some travel costs incurred by his child's out-of-state visits to the mother does not amount to the imposition of child support. Stewart v. Stewart, 245 Ga. App. 20, 537 S.E.2d 157 (2000).

- Trial court did not abuse the court's discretion in continuing to restrict a mother's visitation to within Georgia as the court was authorized to consider the possible detrimental effect of the children's frequent out-of-state travel, including the possibility of interference with school and other activities; further, no equal protection violation existed unless legislation treated similarly-situated individuals differently, and custodial and non-custodial parents were not, by definition, similarly situated. Park-Poaps v. Poaps, 351 Ga. App. 856, 833 S.E.2d 554 (2019).

- As the costs of exercising supervised visitation were directly associated with a former spouse's visitation privileges, under O.C.G.A. § 19-9-3(b), the trial court was empowered to increase the amount of visitation costs to be paid by the former spouse in a contempt proceeding brought by the other spouse. Carlson v. Carlson, 284 Ga. 143, 663 S.E.2d 673 (2008).

Modification of child visitation rights is matter of discretion with trial court and may be based upon existing circumstances even if they have not changed since prior award. Tirado v. Shelnutt, 159 Ga. App. 624, 284 S.E.2d 641 (1981).

It was within a trial court's discretion to deny a father's request for modification of visitation based on the mother's evidence showing that the children were thriving under the current visitation schedule and to discredit the contrary evidence proffered by the father through witnesses who had not seen the children for a number of years. Coppedge v. Coppedge, 298 Ga. 494, 783 S.E.2d 94 (2016).

- When third party has been awarded permanent custody of child, a parent may obtain custody by showing change of conditions affecting welfare of child, but such parent may obtain increased visitation without necessity of showing such change of conditions. Gazaway v. Brackett, 241 Ga. 127, 244 S.E.2d 238 (1978); Moore v. Moore, 217 Ga. App. 148, 456 S.E.2d 742 (1995).

Trial judge is fully authorized to modify visitation rights without necessity of any showing of change in conditions. Tirado v. Shelnutt, 159 Ga. App. 624, 284 S.E.2d 641 (1981).

It was not error for a trial court to modify a father's visitation without finding a material change in circumstances because O.C.G.A. § 19-9-3(b) specifically allowed a modification in visitation without such a finding. Gottschalk v. Gottschalk, 311 Ga. App. 304, 715 S.E.2d 715 (2011).

- Increased visitation to a former wife did not amount to a de facto change of custody because the increased visitation did not exceed the time of custody allowed to the former husband; also, the provision allowing the wife to make decisions regarding the children's day-to-day care when the children were in the mother's custody did not amount to a de facto change in custody. Blackmore v. Blackmore, 311 Ga. App. 885, 717 S.E.2d 504 (2011).

- When evidence showed sexual impropriety of father towards daughter under 14 years old and daughter's dislike of father, it was error for trial judge to increase father's visitation rights. Ledford v. Bowers, 248 Ga. 804, 286 S.E.2d 293 (1982).

- Primary consideration in determining custody and visitation issues is not the sexual mores or behavior of the parent, but whether the child will somehow be harmed by the conduct of the parent. In re R.E.W., 220 Ga. App. 861, 471 S.E.2d 6 (1996).

- Visitation is part of custody. Having made the wishes of a 14-year-old as to custody binding upon the court unless the parent chosen is unfit, the 1986 legislation could not have intended to preclude consideration of the child's wishes as to visitation. O.C.G.A. §§ 19-9-1(a) and19-9-3(a) preserve the authority of the trial court to set visitation rights based upon the best interests of the child, but do not prohibit the court from using the wishes of a child over 14 years of age together with other factors as the basis for the court's decision. Worley v. Whiddon, 261 Ga. 218, 403 S.E.2d 799 (1991).

Judge's decision to increase visitation rights will not be reversed absent an abuse of discretion. Gazaway v. Brackett, 241 Ga. 127, 244 S.E.2d 238 (1978).

RESEARCH REFERENCES

Am. Jur. 2d.

- 24 Am. Jur. 2d, Divorce and Separation, §§ 893, 894, 919. 59 Am. Jur. 2d, Parent and Child, § 38 et seq.

Relocation of Children by the Custodial Parent, 65 Am. Jur. Trials 127.

- 67A C.J.S., Parent and Child, §§ 63 et seq., 132 et seq., 146 et seq.

- Attempt to bastardize child as affecting right to custody of the child, 4 A.L.R. 1119; 37 A.L.R. 531.

Validity of agreement by parent to surrender custody of child in consideration of promise to leave property to child, 15 A.L.R. 223.

Action between parents for the sole purpose of determining custody of child as a proper remedy, 40 A.L.R. 940.

Condition of health of child as consideration in awarding custody, 48 A.L.R. 137.

Death of mother of child whose custody has been awarded to her or to third person by divorce decree as reviving father's common-law duty to support, or right to custody of, child, 128 A.L.R. 989.

Jurisdiction acquired by court in divorce suit over custody and maintenance of child as excluding jurisdiction of other local courts, or as rendering its exercise improper, 146 A.L.R. 1153.

Order in divorce or separation proceeding concerning removal of child from jurisdiction, and award of custody to nonresident, 154 A.L.R. 552.

Extraterritorial effect of provision in decree of divorce as to custody of child, 160 A.L.R. 400.

Custody of child as proper subject of declaratory action, 170 A.L.R. 521.

Jurisdiction to award custody of child having legal domicile in another state, 4 A.L.R.2d 7.

Nonresidence as affecting one's right to custody of child, 15 A.L.R.2d 432.

Alienation of child's affections as affecting custody award, 32 A.L.R.2d 1005.

Right to custody of child as affected by death of custodian appointed by divorce decree, 39 A.L.R.2d 258.

Remarriage of parent as ground for modification of divorce decree as to custody of child, 43 A.L.R.2d 363.

"Split," "divided," or "alternate" custody of children, 92 A.L.R.2d 695.

Violation of custody or visitation provision of agreement or decree as affecting child support payment provision, and vice versa, 95 A.L.R.2d 118.

Child's wishes as factor in awarding custody, 4 A.L.R.3d 1396.

Award of custody of child where contest is between child's father and grandparent, 25 A.L.R.3d 7.

Award of custody of child where contest is between child's grandparent and one other than the child's parent, 30 A.L.R.3d 290.

Extraterritorial effect of valid award of custody of child of divorced parents, in absence of substantial change in circumstances, 35 A.L.R.3d 520.

Noncustodial parent's rights as respects education of child, 36 A.L.R.3d 1093.

Right of putative father to custody of illegitimate child, 45 A.L.R.3d 216.

Right, in child custody proceedings, to cross-examine investigating officer whose report is used by court in its decision, 59 A.L.R.3d 1337.

Modern status of maternal preference rule or presumption in child custody cases, 70 A.L.R.3d 262.

Effect, in subsequent proceedings, of paternity findings or implications in divorce or annulment decree or in support or custody order made incidental thereto, 78 A.L.R.3d 846.

Right to require psychiatric mental examination for party seeking to obtain or retain custody of child, 99 A.L.R.3d 268.

Custodial parent's sexual relations with third person as justifying modification of child custody order, 100 A.L.R.3d 625; 65 A.L.R.5th 591.

Validity and effect, as between former spouses, of agreement releasing parent from payment of child support provided for in an earlier divorce decree, 100 A.L.R.3d 1129.

Admissibility of social worker's expert testimony on child custody issues, 1 A.L.R.4th 837.

Parent's physical disability or handicap as factor in custody award or proceedings, 3 A.L.R.4th 1044.

Race as factor in child custody award or proceedings, 10 A.L.R.4th 796.

Desire of child as to geographical location of residence or domicile as factor in awarding custody or terminating parental rights, 10 A.L.R.4th 827.

Religion as factor in child custody and visitation cases, 22 A.L.R.4th 971.

Interference by custodian of child with noncustodial parent's visitation rights as ground for change of custody, 28 A.L.R.4th 9.

Court-authorized permanent or temporary removal of child by parent to foreign country, 30 A.L.R.4th 548.

Visitation rights of homosexual or lesbian parent, 36 A.L.R.4th 997.

Mother's status as "working mother" as factor in awarding child custody, 62 A.L.R.4th 259.

Child custody: separating children by custody awards to different parents - post-1975 cases, 67 A.L.R.4th 354.

Child custody: when does state that issued previous custody determination have continuing jurisdiction under Uniform Child Custody Jurisdiction Act (UCCJA) or Parental Kidnapping Prevention Act (PKPA), 28 USCS § 1738A, 83 A.L.R.4th 742.

Age of parent as factor in awarding custody, 34 A.L.R.5th 57.

Mental health of contesting parent as factor in award of child custody, 53 A.L.R.5th 375.

Initial award or denial of child custody to homosexual or lesbian parent, 62 A.L.R.5th 591.

Custodial parent's relocation as grounds for change of custody, 70 A.L.R.5th 377.

Restrictions on parent's child visitation rights based on parent's sexual conduct, 99 A.L.R.5th 475.

Effect of parent's military service upon child custody, 21 A.L.R.6th 577.

Parents' work schedules and associated dependent care issues as factors in child custody determinations, 26 A.L.R.6th 331.

Availability and use of electronic communication in child custody and visitation determinations, 96 A.L.R.6th 103.

Sufficiency of evidence to modify existing joint legal custody of children pursuant to consent order or divorce judgment - general principles, jurisdictional issues, and general issues related to "best interests of child," 99 A.L.R.6th 203.

Sufficiency of evidence to modify existing joint legal custody of children pursuant to consent order or divorce judgment - conduct or condition of parents; evidentiary issues, 100 A.L.R.6th 1.

Sufficiency of evidence to modify existing joint legal custody of children pursuant to consent order or divorce judgment - primary custody, visitation, residence, and relocation, 102 A.L.R.6th 153.