Petitions for a Change of Custody

WHY CUSTODIAL PARENT'S RE-LOCATION IS A SUFFICIENT CHANGE OF CONDITION TO SUPPORT A PETITION FOR MODIFICATION OF CUSTODY BY THE NON-CUSTODIAL PARENT.

A REVIEW OF THE RECENT SUPREME COURT OF GEORGIA DECISION,
BODNE V. BODNE, , 277 Ga. 445, 588 S.E.2d 728, (2003)

BY: Candace M. Williams
ASSOCIATE ATTORNEY
FAMILY LAW DEPARTMENT


Preface

This article attempts to identify recent case law involving Petitions for Change of Custody based upon a change of condition. This article is geared toward those divorced, with minor children.

In November 2003, the Supreme Court of Georgia in Bodne v. Bodne, 277 Ga. 445, 588 S.E.2d 728, (2003) (Benham, J., dissenting) overruled or changed many years of child custody law as the Court rescinded the well established presumption that custodial parents have a prima facie right to retain custody.

In Bodne, the parties divorced in 1999, and the divorce decree provided both mother and father joint legal custody of the two minor children. In other words, the mother would have the minor children 50% of the time physically and the father would have the minor children 50% of the time physically. The parties agreed to share the children in equal amounts of time and anticipated alternating every two weeks. In 2001, Mr. Bodne (the father) remarried and informed his ex-wife that he planned to move to Alabama from Georgia and filed a petition to modify the visitation of his ex-wife in contemplation of the move. Ms. Bodne (the mother) filed a counterclaim opposing the move and sought primary physical custody of the children. The trial court awarded the mother primary physical custody of the minor children, which was based on the father's move to Alabama. Thereafter, Mr. Bodne appealed.

The trial court heard a great deal of evidence supporting irreparable harm to the children and held that their was a substantial change in a material condition affecting the children's welfare and ordered a change in custody to the mother. Bodne, supra. On Appeal, the Court reversed the decision of the trial court finding that the father, as custodial parent, had a prima facie right to retain custody absent a showing that the new location put the children at risk. Id. The Georgia Supreme Court reversed the Court of Appeals decision holding that the previous presumption that the custodial parent has a prima facie right to retain custody, unless the objecting parent shows that the environment of the proposed re-location endangers the child's physical, mental, or emotional well being." Id.

As a result of Bodne, when a custodial parent relocates from Georgia, this relocation will allow for the non-custodial parent to petition the trial court for custody. The relocating parent will not lose custody automatically, but the relocation is a sufficient change in condition to enable the non-custodial parent to seek a change of custody. [ 1]

The dissenting opinion in Bodne v. Bodne by Justice Benham states the following:
"The opinion of the majority in this case abandons clear and workable guidelines for resolving conflicts regarding the custody of children, substituting a vague and undefined overarching principle for specific and objective rules of law which have been a useful part of this State's jurisprudence for many years." The effect of this change in the law will be increased litigation, uncertainty in the area of domestic law, increased cost for the parties attendant to the expansion of litigation, unnecessarily contentious custody proceedings, and inconsistency from circuit to circuit, court to court, and judge to judge." In essence, Justice Benham could not join the court's decision because he thought it was an abandonment of established Georgia law.

After a divorce, many former spouses endure many changes. Some meet new people, marry, and have more children. Others find new jobs, go back to school, which would lead to a possible relocation. Does the Bodne decision prevent the custodial parent from moving from the State of Georgia for any of these reasons? Will a primary physical custodian's move from one county to another serve as a basis for change of custody? There are thousands of questions regarding the ramifications of the Bodne decision. Time will tell whether this decision will be long standing precedent in child custody matters.


1 Bodne v. Bodne,588 S.E.2d 728 (2003) overruled Ormandy v Ormandy, 217 Ga. App 780(1)459 S.E.2d (1995), which held that relocation by the custodial parent is in the best interest of the child.

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