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Georgia Case Law Update – Lowry v. Winenger

While many family law appeals have to do with custody issues, the trial court’s ruling on these issues is given great deference and is unlikely to be revered without some sort of error on the part of the trial court. When reviewing a trial court’s decision on a custody modification, Georgia appellate courts will affirm the trial court’s decision “if there is any evidence to support it.” Horn v. Shepherd, 292 Ga 14, 18 (2012) Thus, without an abuse of discretion by the trial court, the ruling will be affirmed.

Such was the case when a mother appealed an order modifying custody and granting it to her ex-husband. Lowry v. Winenger, A16A2133 (2017) In Lowry, the parties shared equal parenting time with their child pursuant to their divorce decree, with the mother as the primary physical custodian and neither party paying child support. The father was granted final decision making authority over religious upbringing and instruction. Shortly after the divorce was finalized, the mother remarried, converted to the Mormon faith, and moved with the child from Forsyth county to Hall county. After she encouraged the child to participate in activities at the Mormon church and otherwise interfered with the father’s parenting time and decision making, he filed a Petition for Modification of Custody, seeking joint legal and primary physical custody of the child.

A guardian ad litem was appointed and, after investigating the father’s claims, recommended that awarding primary physical custody to the father would be in the child’s best interests. After reviewing the GAL report and listening to other evidence, the trial court found that the child had “suffered a number of negative impacts” from the changes since the divorce, including the mother’s interference with the father-child relationship, an apathy toward his new school, and confusion about religion. Accordingly, the trial court awarded primary custody to the father. The mother appealed, alleging these changes were not sufficient to warrant a custody modification. While the Court of Appeals of Georgia noted that “no single factor was sufficient to warrant the change,” the totality of the changes and their resulting impact on the child “constituted the required change in condition.” Id.

The Court of Appeals noted that it will not interfere with a trial court’s ruling when there is evidence to support it and, here, there was sufficient supporting evidence for custody modification. Thus, in this case, as in many other custody appeals, the trial court’s ruling was affirmed. Because of the great deference given to the trial courts on this issue, it would behoove anyone considering an appeal to discuss it with an experienced appellate attorney prior to filing. While you may be upset by the trial court’s ruling, that does not necessarily mean that it wasn’t supported by the evidence, and an experienced appellate attorney should be able to give guidance as to whether an appeal is a good use of your time and money.


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