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Child Custody: The Standard for Modification of Visitation Rights

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Publish Date: 08/06/2014

Some of the most important questions parties to a divorce will ask are "who will make important decisions for my child and how much visitation should my spouse have?" These questions fall under the purview of child custody. Even if the issue of child custody is resolved when the divorce is finalized, what is in the best interests of the child now may not be in the best interests of the child later on. Therefore, parties will sometimes seek to modify their child custody order. Nevertheless, modifying child custody orders is often not as simple as it sounds. In Georgia, there are specific rules and standards that must be observed for a modification to be proper. A recent Georgia case analyzed these rules and standards and set forth some guidelines for us to follow.

In Cannella v. Graham, the trial court originally awarded the parties joint legal custody and awarded primary physical custody to the Mother and visitation to the Father. Cannella v. Graham, 325 Ga. App. 596 (2014). Approximately one year after the trial court's order, Mother filed to modify child custody, seeking sole legal custody of the child and asking that Father's visitation be supervised or eliminated. Id. After Mother presented her evidence, the trial court granted Father's motion for a directed verdict. Id. Mother subsequently appealed. Id.

The Court of Appeals of Georgia noted that "[v]isitation rights of non-custodial parents are subject to review and modification upon the motion of either parent every two years without the necessity of showing a material change in circumstances." Id. (quoting In the Interest of R. E. W., 220 Ga. App. 861, 862 (1996)). However, when determining whether to modify visitation rights, the "best interests of the child standard" shall be considered. See Id. (citing In the Interest of R. E. W., 220 Ga. App. 861, 862 (1996)). The court noted that the trial court granted Father's motion for a directed verdict because Mother "failed 'to show a substantial change of condition affecting the minor child which would justify a modification of custody.' The order does not mention the child's best interest. The order therefore reflects that the trial court applied the wrong standard." Id. at 597. While the trial court orally announced that they made a "best interests of the child" determination, they neglected to mention any such determination in their written order. Id. "[A] trial court's oral pronouncements are not binding because, while they may provide insight on the intent of the subsequent written judgment, any discrepancy between the written judgment and oral pronouncements is resolved in favor of the written judgment." Id. (quoting In the Interest of J. J., 317 Ga. App. 462, 463 (2012)). Accordingly, the court vacated and remanded the case so that the "the best interests of the child standard" could be applied. Id.

By: Jason W. Karasik, Associate Attorney, Meriwether & Tharp, LLC


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