If there has been an initial award of custody (such as in a divorce), a parent can file a subsequent modification of the prior custody anytime thereafter; however, it must be demonstrated that there has been a material change of circumstances that has negatively impacted the children while in the care of the current custodial parent. As one may guess, it is not an easy burden to meet and because judges do not like to change initial custody orders unless there is very good reason, a party contemplating a change of custody action should consult an experienced family law attorney beforehand.
The circumstances supporting a modification based upon a material change of circumstances usually have to be something severe and obvious, like one parent developing a substance abuse problem, leaving the children alone for long periods of time or mental/emotional conditions of the parent. The courts can also change custody if it can be proven that the custodial parent has been alienating the children against the other parent.
Furthermore, the court can also change custody based upon the custodial election of a child aged 14 years or older. A teenager’s election to live with the other parent is deemed to meet the material change of circumstances standard (more on this below).
What Happens When One Spouse Wants To Move To Another State?
What happens will usually depend on whether the move occurred while the divorce action was pending on or if it happened afterwards.
A spouse who tries to move with the children while the divorce is pending on will have a very difficult time because there will be an automatic restraining order in place in most of the counties in the metro Atlanta area which would prevent either party from taking the children out of the court’s jurisdiction. Such an order would not prevent short trips, but it would prohibit a parent from trying to relocate with the children. A party that violates the order can face serious sanctions by the court and will not be helping their chances to win ultimate custody.
Speaking of permanent relocation, it can be a huge factor in custody modification cases.
Judges in the metro Atlanta area are not fond of parents with custody moving at all and the courts have become intolerant of custodial parents trying to move and potentially depriving the other party of their current parenting time with their children. Accordingly, the reason for the move will be closely examined. Is the custodial parent receiving a non-negotiable transfer due to employment or is the move because he or she has met the love of their life on match.com a thousand miles away?
We started seeing a lot of custody modifications filed in the early millennium with the increasing popularity of the Internet and the use of dating websites. Of course, the circumstances of each case is different and must be evaluated in total, but generally a court is going to take a dim view of a custodial parent attempting to move for romantic reasons.
If the move is due to circumstances beyond the custodial parent’s control and not due to personal factors (or worse, a goal of simply moving to get the children away from the other parent), the court is more likely (although not guaranteed) to approve the move. The parenting time for the party remaining in Georgia would then have to be restructured (usually into significant “block” periods of time suitable for summers and breaks from school) if the move is approved.
Can A Child Modify Custody Arrangement?
In Georgia, a child can select the parent with whom he or she wants to reside (this is called a custodial election by a minor) provided that the child is 14 years or older, subject to the judge’s approval that the switch is in the child’s best interest. The child must execute an affidavit in the presence of a notary attesting to his or her election, which is then filed with the court. A child 14 years or older can make their election in the initial custody action (usually the divorce) or in a subsequent modification. In fact, modifications of custody are often brought because of a teenager’s election to live with the non-custodial parent. Between the ages of 11 and 14, the child can express his or her wishes as to custody and visitation and the court may give strong consideration to the child’s preferences but the court will not attach the same weight it would to an older child.
A 14 year old can also make a formal selection of a joint physical custody schedule for equal time with both parents within his or her affidavit of election.
The custody code in Georgia was modified a few years ago to limit a child’s right to file a custodial election to every two years. This was a very wise move on the legislature’s part, since some children tend to have a “grass is always greener” complex. Many teens were electing to live with the other parent only to find out that they were expected to do chores and homework, had curfews, etc. at that parent’s house too. By limiting the custodial election to every two years, a teenager is forced to think carefully about his or her choice and to live with the consequences of an important decision.
Child Custody and Adoption?
A child who has been adopted is considered legally no different than a biological child. For example, if a step-parent adopted their spouse’s child and the stepparent and natural parent eventually divorce, the step-parent would have just as much legal right to custody of the child as the natural parent. In a case that went to the Georgia Supreme Court, there was a divorce between a stepparent and natural parent and the trial court gave custody to the stepparent. When the natural parent appealed, the Georgia Supreme Court affirmed the trial court and ruled that the birth parent had no superiority over the adopting parent. Once the stepparent became the other legal parent, he stood on the same legal footing as the biological parent.
For more information on Child Custody Modification, please call (770) 271-1843 today to schedule an initial consultation. Get the information and legal answers you’re seeking.