Modification of a Final Child Custody Order
No, a showing
of material change of circumstances affecting the interests and welfare of the minor
children is not required to modify a temporary custody order.
It is black
letter law that to modify a prior final order on custody, the petitioner
would first need to show a material change of circumstances that affects the
interests and welfare of the minor children. If such a material change of
circumstances is proven, then the trial court determines whether modification
of custody is in the best interests of the minor children.
Some examples
where modification of custody may be granted include a situation where one
parent engages in repeated interference with the other parent's parenting time and
a situation where an older child executes an affidavit expressing his desire to
live with the other parent.
Modification of a Temporary Child Custody Order
However, the
law is different when it comes to modifying a temporary order on custody. That
is, a showing of a material change of circumstances affecting the children's
interests and welfare is not a requirement to alter a temporary custody award.
The trial court has wide discretion in modifying its temporary custody order.
In Hadden v
Hadden, one of the issues on appeal was whether the trial court was
authorized to alter its multiple temporary custody orders without a
demonstrated change in material condition. Hadden v. Hadden, 283 Ga. 424
(2008). The Supreme Court of Georgia held that a showing of change in material
condition is not required to modify a temporary custody order, reasoning
that such standard applies to modifying final custody awards and not to
temporary custody orders.
Should you
have any questions about modifying custody of your child, contact Meriwether
& Tharp today for a free 30-minute telephone conversation with an
experienced family law attorney.
Written by:
Daesik Shin