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Determining Contested Custody Cases

In a contested child custody modification action, the parent seeking the change of custody must show the following:

  1. There has been a change of condition;
  2. The change of condition substantially affects the interest and welfare of the child, and the changed condition is material; and,
  3. The change of condition is shown with new evidence occurring since the last prior award.

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 prove that a change of condition sufficient to modify a prior award of custody has occurred, the parent seeking to modify custody must show that the parent who was originally awarded custody is no longer able or suited to retain custody, or that the conditions and circumstances surrounding the child or the non-custodial parent have so changed that the welfare of the child would be substantially enhanced by modifying the original judgment. Elders v. Elders, 206 Ga. 297 (1950); Robinson v. Ahsmore, 232 Ga. 498 (1974) and Dearman v. Rhoden, 235 Ga. 457 (1975). Even with this evidence, however, a court’s order modifying child custody must be supported by evidence that the terms of the change in custody are in the best interest of the child. Lifsey v. Lifsey, 256 Ga. 613 (1987). Although the fitness of the parent originally awarded custody to retain custody is a matter that the presiding court will likely consider, it is not necessary for the parent originally awarded custody to be found an unfit parent before a court will modify a pre-existing custody order. Haralson v. Moore, 237 Ga. 257 (1976).

Georgia law requires that a substantial change in conditions affecting the child or children involved occur before a prior award is modified. However, the law does not specify exactly what changed conditions may allow for such a change, as this determination is made on a case by case basis. A court presiding over a modification action must weigh all evidence presented while also considering the best interests of the child concerned in making its final determination. See Crumbley v. Stewart, 238 Ga. 169 (1977). Although there is no established set of facts which may lead to a modification in any particular case, the following are examples of evidence which was sufficient to prove the required change of condition:

  • Evidence showing the surrender of physical custody from one parent to the other parent;
  • Evidence showing that the custodial mother’s employment required extensive overnight travel and the children frequently stayed with the father or grandparents;
  • Evidence showing that one parent had poisoned the mind of the child against the other parent;
  • Evidence showing that one parent had moved the children 1000 miles away from the other parent, refused to let the other parent visit with the children, and prejudiced the children against the other parent;
  • Evidence showing that the custodial parent was alcohol dependent, cohabited with a man who was not her husband, and neglected the children; and,
  • Evidence showing that the emotional condition of the child has deteriorated since the entry of the prior order to a point that it threatens to become a permanent disorder.

See in order of recitation, Thompson v. Thompson, 153 Ga.App 80 (1980); Green v. Krebs, 245 Ga.App. 756 (2000); Adams v. Adams, 219 Ga. 933 (1964); Jones v. White, 209 Ga. 412 (1952); Daniels v. Daniels, 213 Ga. 646 (1957); Murphey v. Murphey, 213 Ga. 401 (1957).