Modifying a Custody Order

I suspect that I receive more telephone calls asking about changing custody of minor children than any other single topic except modifying child support or alimony. Just like an original order of custody, the best interests of the children is the guiding principle in determining the conditions of custody and who will be the primary custodial parent, with one major difference. In Georgia, to modify custody it is necessary to prove that there has been a change in condition since the previous custody order was entered that substantially affects the interest and welfare of the child. The change must be material and consist of new evidence occurring after a previous award of custody. The key test for a change of custody is a showing that either the original custodial parent is no longer able or suited to retain custody or that the conditions and circumstances surrounding the child have changed so much that his or her welfare would be improved by modifying the original custody order. It is important to realize that it is not necessary to show that the custodial parent is unfit to change custody.

There are too many examples of a change of condition to list here, but some examples are as follows:

• a parent who has primary custody intends to relocate
• the primary custodian is abusing drugs or alcohol causing mental impairment or neglect of the children
• repeated unjustifiable interference with visitation
• alienation of the children from the non-custodial parent
• cohabitation by a parent with a man or woman who is not his wife or her husband in the presence of the children
• addiction of a parent to alcohol or drugs
• leaving the children for long periods of time with grandparents or other third parties

As always, after a material change of condition is shown, the best interest of the child is the central question for a court to answer.

There is no area of family law more contentious and emotional than disputed custody cases. All too often, parents use their children as weapons to slake their appetite for vengeance or to gain an advantage in the resolution of other aspects of an original divorce case or modification. I have argued myself blue in the face on many occasions trying to stop a parent from using their children as weapons with middling success. The use of psychologists or experts in child counseling is highly recommended.

There are occasions when a parent will try to change custody to avoid paying child support. This, of course, is not a proper ground for a modification, and no sensible lawyer would ever file such a petition if that were the only reason.

My experience has shown me that contested custody cases bad for the children and bad for the parents' pocketbooks. I have heard more than one judge ask why parents think a court is better able to decide what is best for the children than the parents. Judges hear these cases because they must. It does not mean they like it and much prefer the parents work out the details on their own. I have found mediation is sometimes effective resolving these cases, especially when the mediator is knowledgeable in this area and is willing to be very frank with each parent. A mediator who just carries messages back and forth between the parties will not do the trick.

A final word about the lawyers who are involved in these cases. All litigation involves a lot of stress, but disputed custody must be right at the top of the list. A lawyer can fan the fires of emotion or he can cool them down. Clients in these cases are commonly emotional and not always rational. Sensible legal advice, along with professional counseling is what I believe the highest standards of the profession require. Unfortunately this is not always the case, and with our adversary system some lawyers always want "to win." To that I say no one wins by putting the children and themselves through the hell of a custody trial except, possibly, the lawyers who collect big fees.