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Georgia Case Law Update – Odum v. Russell

Publish Date: 10/05/2017

For a divorce with children involved, the Marital Dissolution Agreement and/or Final Divorce Decree will include a Parenting Plan that details custody and visitation. The Parenting Plan is required to be specific and outlines exactly when the children are with each parent and which parent has decision-making authority (or how the decision-making authority is to be divided). This custody and visitation arrangement is put into place based on the circumstances at the time of the divorce. As the children get older and schedules change, it is sometimes necessary to modify the plan to better meet the changed needs of the family. A parent cannot just modify custody on a whim, however. In Georgia, in order to modify custody, there must be a “change in any material conditions or circumstances of a party or the child.” O.C.G.A. § 19-9-3(b). 

The Georgia Court of Appeals recently heard a case on this very issue. In Odum v. Russell, the parties divorce decree granted them joint legal and physical custody of their minor child, with the child alternating weekly between the parents and final decision making authority split between them. Odum v. Russell, A17A0477 (June 20, 2017). Ten years after the divorce, the father filed a petition to modify custody alleging that a change to legal and physical custody was warranted based on changes in material circumstances. The wife filed an answer and counterclaim, also alleging that material changes necessitated a custody change, but in her favor. After a hearing, the trial court found “no material change in circumstances that would authorize a change in custody or a reduction in the Mother’s parenting time.” However, despite the fact that no material change was found and the court held that custody should remain unchanged, the court then modified several custodial portions of the divorce decree including decision making and summer custody, finding that “parenting issues in the original divorce agreement need adjusting in the best interest of [the child].”

The father appealed, contending that the trial court erred in modifying custody after finding there was no change in material circumstances. The Georgie Court of Appeals agreed, holding that only once it has been determined that there has been a material change in circumstances should the trial court look at whether the child’s best interests will be served by a custody modification. The Court cited 2001 precedent which found “there is no precedent which would allow a trial court, absent a change in conditions affecting the welfare of the child, to modify custody. The best interest of the child should be utilized in deciding the case once a change in condition has been established.” Id., citing Daniel v. Daniel, 250 Ga. App. 482, 484-485 (2) (552 SE2d 479) (2001).

In the Odum case, the trial court jumped to the best interest standard without finding the requisite material change in circumstances. In fact, the trial court expressly found that there was no material change. Accordingly, the Georgia Court of Appeals reversed the trial court’s decision and custody in this case will remain wholly unchanged for the time being.


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