If you are denied court ordered visitation with your child you should contact an attorney and consider filing a contempt action. Nonetheless, during a contempt action, can you ask the court to modify the visitation or child custody provisions in your court order? Under Georgia law, visitation rights may be modified upon motion by any party or the judge during a contempt proceeding, however custody may not be modified in a contempt proceeding. O.C.G.A. § 19-9-3(b). A recent Georgia case clarified this difference further.
In Weeks v. Weeks, the Father brought several contempt actions against Mother for denying him court ordered visitation with his child. Weeks v. Weeks, 324 Ga. App. 785, 786 (2013). After finding Mother in contempt several times, the trial court ordered Mother jailed until "receipt of an affidavit guaranteeing supervised visitation by the father with the child." Id. By Final Order of November 8, 2010, the trial court found that continued custody by Mother was in the child's best interest and ordered supervised visitation by Father. Id. In December 2012, the trial court found Mother in contempt again for denying Father visitation and for blocking regular telephone visitation. Id. The trial court found that the supervised visitation was putting a damper on Father's relationship with the child and modified the Parenting Plan by deleting the requirement of supervision. Id. In addition, "the trial court also scheduled a compliance hearing for January 31, 2013, '[b]ecause there have been such extensive problems with compliance with the Court's orders in the past.'" Id. Mother filed a notice of appeal prior to the compliance hearing, and after the compliance hearing, the trial court entered an order changing physical custody of the child to Father. Id.
Mother argued that changing visitation from supervised to unsupervised was an error by the trial court because she was not put on notice of the change and the trial court was not authorized to make that change in a contempt hearing when there was insufficient evidence to support it. Id. at 787. The appellate court noted that under O.C.G.A. § 19-9-3(b), "the trial court is expressly authorized to modify visitation rights, on the motion of any party or on the motion of the judge, during a contempt proceeding." Id. (citing Cross v. Ivester, 315 Ga. App. 760, 766 (2012)). The appellate court stated that "although custody may not be changed in a contempt proceeding, we have long held that [OCGA § 19-9-3 (b)] allows the modification of visitation rights, even on the court's own motion." Id. (citing Horn v. Shepard, 292 Ga. 14, 18-19 (2012)). The appellate court found that there "was more than sufficient evidence to indicate that the mother was refusing to allow visitation, even supervised, as provided in the trial court's previous orders and that there was adequate reason to change the conditions of visitation." Id. 787. Regarding Mother's claim that the she was entitled to notice and time to prepare an adequate response to the request for a change in visitation, such notice is not required by O.C.G.A. § 19-9-3(b) or anywhere else under Georgia law. Id.
By: Jason W. Karasik, Associate Attorney, Meriwether & Tharp, LLC