Self-Executing Visitation Provisions are Invalid

The Supreme Court of Georgia recently heard a case regarding a self-executing modification in a final divorce decree. Johnson v. Johnson, S11F1856 (2012). In that divorce case, the final decree of divorce awarded the mother primary physical custody of the parties' daughter, with supervised visitation to the father. Id. The parenting plan further provided that the father's overnight visitation must be supervised by "a reasonable adult approved by [a therapist treating the child], until such time as [the therapist] determines that supervision is not necessary." Id. Under the parenting plan, the therapist had the additional authority "to determine how supervised visitation should be phased out over time and when supervision may end." Id. The father appealed, contending that the "provisions concerning the termination of the supervised visitation constituted an improper self-executing modification contingent on the determination of the therapist." Id. at 2.

The Supreme Court of Georgia agreed with the father that the provision is an improper self-executing change of visitation because it allows for an automatic change in his visitation based on a future event, without any additional judicial scrutiny. Id. at 2-3. The Supreme Court held "a self-executing change in custody/visitation that constitutes a material change, i.e. is one that is allowable only upon a determination that it is in the best interests of the [child] at the time of the change,' generally violates Georgia's public policy founded on the best interests of the child." Id. at 3. The responsibility for making this decision must be made by the trial court and cannot be delegated to another person or entity. Id. In this case, the provision regarding the change in the father's visitation is considered a material change. Since, under this provision, it will occur automatically without any judicial scrutiny, "it is an invalid self-executing change of visitation" and must be stricken from the final divorce judgment. Id. at 4.

Example of Valid Self-Executing Provision in a Georgia Divorce

On the other hand, a provision that provided the father and mother shall alternate physical custody of their child on a weekly basis until the child began first grade, after which the child would live primarily with the mother was held to be valid. This is because the trial court found that the mother had to travel out of town due to her new job and the child had spent additional time with the father while the mother was out of town, and that the child would need the additional stability associated with having one primary residence—which showed that the court gave paramount import to the child's best interests. Lester v. Boles, 335 Ga.App. 891 (2016).