The reason (singular) for modification of custody in Georgia is the requested modification is in the best interests of the child. Best interests, like almost everything else, change over time. When those interests change, the order has become inappropriate or unworkable, as we lawyers say. Therefore, modification is not only available. The law requires it.
Note that the modification must be in the best interests of the child, not the best interests of the parent. Job change relocations are a good example. If Mom is promoted to area manager in Oakland, a relocation is almost certainly in her best interests. Is that move in the best interests of a child? That’s the question a court must answer.
Procedurally, a Marietta family law attorney generally settles modifications out of court, and sometimes without going to court at all. Usually, if the parties present an agreed modification order to a judge, the judge will approve it without requiring a hearing. If an agreed resolution isn’t in the cards, for whatever reason, a good Marietta family law attorney stays with you until the end of the line.
Custody Modifications for Relocation
Move-away modifications might be the most common child custody or visitation modifications in Georgia.
Expedited approval is available in many states if the relocating parent is only moving a few miles away, usually less than fifty, and not crossing state lines. But in Georgia, all relocation modifications are the same, whether the movant is relocating to Smyrna or Saturn. Special rules apply to military deployment modification requests.
Georgia law includes a thirty-day notice provision. Custodial parents must deliver notice to anyone who may be entitled to visitation rights, such as a grandparent. A few limited exceptions apply in a few cases.
If the other parent objects to the move in writing, the movant must usually establish changed circumstances (more on that below) and best interests. Some factors to consider include:
- Child’s special needs,
- Child’s relationship (or lack thereof) with the objecting parent,
- Proposed move’s disruption, and
- Parental preference.
Some parents directly express a preference in writing. Usually, parents indirectly express their preferences through the relationships they have with their children.
The parent’s motive matters as well. If Mom wants to move for Mom’s sake, the relocation may not be in the child’s best interests. If Mom wants to move to separate Junior and Dad, the relocation is almost certainly not in the child’s best interests.
Pre-filing mediation is often a good idea in these cases. For example, Dad may agree to Mom’s relocation if Mom agrees to longer summer vacation visitation.
Custody Modifications for Changed Circumstances
Roughly the same rules apply to changed circumstances custody requests. The onset or removal of a disability is the most common changed circumstances request. If Mom develops a heart condition that drains her energy, she may no longer be an ideal custodial parent. If Dad’s drug addiction endangers the child (e.g. he uses at home or leaves Junior alone), the court may reconsider his access to the child.
Usually, the moving party must prove both changed circumstances and best interests. However, in all modification matters, the movant must only prove best interests if:
- The existing order is at least two years old, and
- A child over 14 expresses a written preference.
A bona fide preference constitutes changed circumstances under Georgia law. A coerced or staged preference is not a bona fide preference. Furthermore, the judge has veto power, if the expressed preference isn’t in the child’s best interests.
Incidentally, if the child is at least 11, the judge must consider the preference. But there’s no presumption.
The two-year waiting period doesn’t apply to visitation modifications. In other words, the judge can modify visitation at any time, if the requested modification is in the child’s best interests.
Parental schedule changes are a good example. If Dad starts working weekends, the existing order is clearly unworkable. Most likely, the judge would rearrange the parenting time schedule, perhaps by giving Dad limited weekday overnight visitation.
Judges usually order post-filing mediation in contested changed circumstances and under two-year modifications.
Trauma
Technically, trauma modifications, usually related to domestic violence, are changed circumstances/two-year modifications. But these modifications have unique aspects we should discuss.
First, the judge may order an emergency temporary change in these cases, especially if the child’s immediate physical welfare is at stake. These “temporary” orders often become permanent later.
Second, and perhaps more importantly, trauma modifications usually have collateral consequences, such as criminal cases and protective orders.
Criminal Cases
Police almost always file domestic violence assault charges if they respond to disturbance calls, even if the assault only causes minor injuries.
DV assault is usually a misdemeanor, but prosecutors can enhance the charges to felony assault in some cases. These defendants normally receive probation. However, DV assault probation is unusually long and burdensome in Georgia. Probation terms commonly last at least two years. Furthermore, judges often add conditions, such as anger management classes and substance abuse counseling requirements.
Lack of credible evidence is the best defense in these cases. Sometimes, a Marietta criminal defense lawyer argues that alcohol, or another substance, clouded the alleged victim’s memory. Other alleged victims exaggerate, or even fabricate, assault charges to get an advantage in a parallel civil proceeding, such as a custody modification action.
Significantly, these defenses must only create a reasonable doubt as to the defendant’s guilt at trial or be effective bargaining chips during plea negotiations.
Protective Orders
These orders are par for the course in marital trauma modifications. The order could be part of the court’s temporary orders or, more likely, a standalone order. Common provisions in protective orders include keep-away orders that require defendants to vacate shared residences, even if the defendant is financially responsible for rent or mortgage payments.
Frequently, a Marietta criminal defense lawyer submits a proposed agreed consent decree to the alleged victim. Consent decrees and protective orders are often identical in most ways, but a CD doesn’t carry the PO stigma.
Custody modification actions are part of life. For a free consultation with an experienced Marietta criminal defense lawyer, contact The Phillips Law Firm, LLC. Convenient payment plans are available.
