Child Custody Modification

  • In child custody modification cases in Georgia, presiding courts must apply the best      interest of the child test and may not apply a bright line rule which assumes that the custodial parent has a prima facie right to retain custody. Bodne v. Bodne, 277 Ga. 445 (2003)
  • In a change of custody case, the initial custody award will not always control after any new and material change in circumstances that affects the child is considered. Bodne v. Bodne, 277 Ga. 445 (2003)
  • In contested cases, the parent seeking the change of custody must show the following:
    • There has been a change of condition;
    • The change of condition substantially affects the interest and welfare of the child, and the changed condition is material; and,
    • The change of condition is shown with new evidence occurring since the last prior award.  The change can be positive as well as negative.

See Peacock v. Cox, 24 GA. 261 (1979); Nodvin v. Nodvin, 235 GA. 708 (1975); McNair v. McNair, 242 Ga. 105 (1978).

In order to justify a change of custody, there must be a showing that the party to whom custody was originally awarded is no longer able or suited to retain custody, or that the conditions and circumstances surrounding the child or the parent out of custody have so changed that the welfare of the child would be substantially enhanced by modifying the original judgment.

See Elders v. Elders, 206 Ga. 297, 57 S.E.2d 83 (1950); Robinson v. Ashmore, 232 Ga. 498(I), 207 S.E.2d 484 (1974); Douglas v. Douglas, 285 Ga. 548 (2), 678 S.E.2d 904 (2009).

There must also be evidence that the terms of the custody change are in the best interest of the child or children.  It is not necessary that the parent currently holding custody be found to be an unfit parent.