Child custody is often a significant issue in a divorce. If parents don't resolve it between themselves, a judge will ultimately make the decision for them. But that may not be the end of the story, because circumstances could arise after the divorce that might warrant changing an existing custody order. A parent's desire to relocate with a child is a prime example. Is that permitted in Georgia? And if it is, can the other parent do anything about it? Here's a basic rundown of how Georgia law answers these questions.
When judges make their initial rulings on child custody, they're guided by one overarching principle—what is in the child's best interest. The same standard applies to proposed changes in custody resulting from a parent's desire to relocate. That's particularly true when it's the custodial parent who wants to move.
If the move will be local, it's usually not a major issue. But complications—and conflicts—can arise when a custodial parent plans to move far enough away that it would affect the other parent's visitation rights (also known as "parenting time").
Under Georgia law, any parent who's planning to relocate must notify the other parent at least 30 days before the planned move. Also, a moving parent who has primary physical custody of the child must also notify anyone else who might be entitled to visitation rights, such as a grandparent. (Ga. Code § 19-9-3(f)(3) (2023).)
One reason for the 30-day notification requirement is to give the other parent time to take action if they object to the planned move. The objecting parent may file a motion (written legal request) with the court to modify the existing custody order. Also, the moving parent might request a modification to change the current parenting schedule if the move would affect the other parent's visitation rights.
As a general rule, anyone seeking a custody modification in Georgia must first prove to the judge that there's been a change of circumstances that affects the child's welfare. But there are exceptions to the changed-circumstances requirement, including:
(Ga. Code § 19-9-3(a)(5), (f)(2) (2023).)
Once a judge finds that a custodial parent's planned relocation is a change of circumstances affecting the child's welfare, the judge must then decide whether it would be in the child's best interests to change custody if the move happens. Although judges may certainly consider the potential effect of the move on the child, Georgia courts have held that a custodial parent's relocation isn't enough—in and of itself—to justify a modification. (Neal v. Hibbard, 770 S.E.2d 600 (Ga. 2015); Scott v. Scott, 276 Ga. 372 (Ga. 2003).)
The bottom line is that if your ex has primary custody and is planning on moving with your children, you need to prove that the relocation would affect the kids' welfare and that it would be in their best interests if you were given primary custody instead. That task will be somewhat easier if your ex doesn't have a compelling reason for a relocation that would uproot the children from their school and community ties—and would make it harder for you to maintain your relationship with them.
More often than not, however, custodial parents have a legitimate basis for needing to relocate, such as when their employer requires it (and it would be difficult to find comparable employment locally) or when they have to care for an aging parent. In that situation, the judge must balance the parents' competing needs—while keeping the focus on the child's best interest.
Another factor that could significantly impact a judge's ruling on a move-related modification request is whether a child wants to move with the custodial parent or stay put and live with the other parent instead. Many states allow judges to consider children's custody preferences, but Georgia law does so more specifically than most. On this issue, Georgia law says:
For younger adolescents, between the ages of 11 and 14, judges will take their wishes and educational needs into consideration. But their preferences won't carry the same weight or legal effect as with older kids, and judges have full latitude to decide what would be best. (Ga. Code § 19-9-3(a)(5), (6) (2023).)
Georgia law provides a lengthy list of factors for a judge to consider when making an initial custody ruling and any subsequent requests to modify a custody order. Assuming both parents can provide a loving and secure environment for their children, how a judge applies those factors to a relocation request will depend on the specific facts of each case.
In one Georgia case, for example, a mother with primary custody wanted to relocate with her young autistic child to Ohio. She wanted to take care of her elderly father but also believed there would be better educational opportunities for the child in Ohio. So she requested a custody modification to change the father's parenting time. The father objected to the move and found a school in Georgia that would tailor an educational program to the child's needs. After weighing the circumstances and evidence, including the recommendations of the child's guardian ad litem, the judge denied the mother's request. The judge felt that the availability of satisfactory schooling in Georgia, together with the child's strong connection to the father and the father's extended family, tipped the scales in favor of maintaining the status quo. The appeals court upheld that decision. However, because the mother hadn't committed to the move, the court also found that the judge didn't have the authority to issue an order that would automatically change custody to the father if she went ahead with the relocation. (Jones v. Ahmad, 818 S.E.2d 263 (Ga. Ct. App. 2018).)
It's probably fair to say that the older a child gets, the more significant the negative effects of relocation can be. And that's an argument a noncustodial parent will often make. Leaving your school and your friends becomes more difficult the longer you've been entrenched in that community.
Although the impact on the child is central to a judge's decision on relocation, you can't overlook the effect of a move on the noncustodial parent. If you and your child are used to spending time together a few days a week and every other weekend, for example, the prospect of losing that access can be devastating for both of you. Georgia law addresses that consequence, at least obliquely. Among the factors that go into custody decisions, judges must consider the "emotional ties" between parent and child, as well as each parent's encouragement of the child's "close and continuing" relationship with the other parent. (Ga. Code § 19-9-3(a)(3) (2023).)
If a custodial parent relocated without notifying the other parent in advance, that would be a violation of the 30-day notice requirement in Georgia law. It could also be considered a violation of the existing custody order that provides visitation rights to the other parent.
When this has happened, the noncustodial parent may file a motion with the court seeking to compel the relocating parent to return the child to the state of Georgia. As part of this motion, the noncustodial parent would probably also ask the judge to hold the relocating parent in contempt of court for the unauthorized move, which could result in fines or even jail time.
Cases involving custody and a parent's planned relocation can be quite complex. If you find yourself in this situation, you'd be well advised to consult with a knowledgeable family law attorney.