In Georgia and every other state, court orders regarding child custody aren't etched in stone. Circumstances can change over time. And if those changes impact a child's welfare, a judge may modify an existing custody order to serve the child's best interests. Read on to learn about the requirements in Georgia for changing custody or parenting time, and how judges decide on these requests.
Under Georgia law, any order regarding child custody or visitation (also known as "parenting time") must be based on what will be in the child's best interests and will best promote the child's welfare and happiness. This requirement applies to initial custody orders as well as any requested changes to those orders.
To that end, the law provides a lengthy list of factors for judges to consider when they're deciding what custody arrangements a child's best interests in a particular case.
Note that both parents have an equal right to seek custody. In that regard, the law is gender-neutral. (Ga. Code § 19-9-3 (2023).)
Either parent may seek a change in custody or visitation in Georgia by filing a motion (written legal request) with the court. It's then up to the judge to decide whether to grant the request. Georgia law has different requirements for motions to change custody and motions to change visitation.
There are two categories of child custody in Georgia: legal custody and physical custody.
A parent who's requesting a modification of the existing custody order—whether legal or physical custody—must prove two things:
In effect, it's a two-pronged test. (Mashburn v. Mashburn, 353 Ga. App. 31 (Ga. Ct. App. 2019).)
Sometimes the decision is fairly easy, such as when the custodial parent has developed a drug addiction that directly impacts the child's safety. But it's usually not that clear-cut, particularly when both parents provide a loving, stable home for the child. The judge will have to look closely at all the circumstances to decide whether the parent requesting a change has met both parts of the two-part test.
A prime example of this arises when a custodial parent wants to relocate to a different residence. Georgia law specifically addresses this situation. (Ga. Code § 19-9-3(f)(3) (2023).) Let's say the custodial parent of an eleven-year-old boy needs to relocate from New Jersey to California because her employer is moving there. That's definitely a significant change in circumstances. But would ordering the child to move with her be in his best interest?
That depends on a number of different factors. If the boy has a strong relationship with the other parent and local extended family, is very active in sports or other extracurricular activities, and has many friends, a judge might find that uprooting him would be detrimental to his well-being. So the mother wouldn't have met the second prong of the two-pronged test.
The judge may order a temporary custody change while the modification motion is pending. (Ga. Code § 19-9-3(e) (2023).) This usually happens if the judge believes the temporary change is necessary for the child's welfare.
The judge doesn't have to find that the circumstances have changed before ordering a temporary custody modification. And any temporary order won't reflect the final outcome of the custody modification request. (McManus v. Johnson, 849 S.E.2d 708 (Ga. Ct. App. 2020).)
It's a bit easier to request a change in visitation or parenting time than asking to change custody. Under Georgia law, a parent may request a modification of a visitation order once every two years without having to prove that there's been a change of circumstances. But the parent still must prove that the requested change in parenting time would be in the child's best interest. (Ga. Code § 19-9-3(b) (2023).)
For example, say a noncustodial father's work hours have changed, preventing him from being able to see his son under the current visitation schedule. A judge would probably find that it would be best for the boy to have that schedule adjusted so that he could spend the same amount of time with his father as before.
How visitation would change will depend on the circumstances. In the example above, the judge might allow more frequent weekend visitation if the child is in school during the only free time the father during the week. Granted, this might throw off the other parent's schedule to some degree, and the judge would have to take that into consideration. But the reality is that there has to be give-and-take when it comes to the child's welfare.
Georgia custody law lays out a different set of rules for modifying custody when a military parent is being deployed. (Ga. Code § 19-9-3(i) (2023).) The judge will allow for a temporary modification of an existing custody/visitation order to accommodate any change in a deploying parent's ability to exercise normal parental rights and responsibilities.
Among other things, the judge may include provisions designed to ensure parent-child contact during the deployment, such as through telephone calls, emails, or internet video conferences. And a temporary modification order must include a reasonable and specific transition schedule to help the parents return to the previous custody and visitation arrangement over the shortest reasonable time period after the deployment ends.
The law on custody modifications due to military deployment can be fairly complex. So you might want to consult a knowledgeable family law attorney or seek help through legal assistance available for members of the U.S. Armed Forces and their families.
The child's preference is another important factor that could significantly impact a judge's ruling on a custody modification request. Many states allow judges to consider children's custody preferences, but Georgia law does so more specifically than most.
When it comes to children who are at least 14 years old, Georgia law provides that:
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).)
Nothing in the law says that you and your ex can't resolve custody and visitation modification issues on your own. You'll still need a judge's approval to formalize the change. But you can do this by submitting a consent order to the court, bypassing the usual procedural hurdles that are involved when parents disagree about modification request. A judge will usually approve your agreement, as long as it appears to be in your child's best interests.
If you and your ex want to resolve things amicably, but you're having trouble reaching your goal, you can try custody mediation. The cost of mediation varies, but the two of you can split the mediator's fee. And a successful mediation will normally be considerably less expensive and stressful than a full-blown custody modification trial in court.