Summertime brings visions of fun, vacations, beaches, travel and camps. These are things that may people look forward to, and divorced parents are no exception. Many divorced parents will receive additional time with their child, or children, during the summer.  Frequently the parent without physical custody will have a week or two of uninterrupted summer parenting time that may lead to questions of “what if?”  What if I did not live with dad or mom (insert name of custodial parent) and I lived with you?  The reasons a person may wish to change their custody agreement may vary.  Spite, a parent moving from their current home, disagreements about how child is being raised, introduction of a boyfriend or girlfriend into the child’s home, dependency issues of the parent with physical custody, a desire not to pay child support, and/or the desire of the child may all be reasons to seek a change of custody;  but the analysis a Judge will use will be the same. To modify an existing Custody Order a Court must first determine if there has there been a change of circumstances since the entry of the initial custody order AND has the change of circumstances affected the child’s best interest to warrant a change of custody. Vishup v. Vishup, 291 Ga. 103, 105 (2012).  While the Court will eventually look at what is in the best interest of the child (see OCGA § 19-9-3 (a) (3) (A)-(Q)), a change of circumstance is the threshold to be shown first.

This has principal has recently been hammered home by the Georgia Court of Appeals in Burnham v Burnham, 2019 Ga. App. Lexis 297, 2019 WL2352952.  In Burnham the parent with physical custody (mom) gave the non-custodial parent (dad) notice of her intent to move from her current residence in Coweta County to a new residence in Cobb County, as a result of a change in her employment.  Dad filed a Petition to Modify Custody and Child Support arguing that Mom’s move was a material change in circumstance. He argued further that the move was not good for the children because “The children had lived in Coweta County their entire lives and had family nearby with whom they had close relationships, including their paternal grandparents who often picked them up from school or had them spend the night. The children were doing well in school, participated in several extracurricular activities, and were active in church. According to family and friends, both parents were involved in these activities and provided nurturing environments for the children.” Burnham at 3. The trial court agreed with Dad that a change in custody was in the best interest of the children and gave Dad physical custody. Mom appealed the trial Court’s decision, arguing that the trial Court failed to make a threshold determination that there was a material change in circumstance so modification was inappropriate.  The Court of Appeals agreed with Mom, and remanded the case back to the trial Court to determine if a new and material change in circumstances occurred that affects the child. See Weickert v. Weickert, 268 Ga. App. at 627 (2004); Odum v. Russell, 342 Ga. App. 390, 392 (802 SE2d 829) (2017).

Initial Custody v Modification of Custody – Different Standard.

It is important to remember that while the best interest of the child standard applies to an initial determination of custody, best interest of the child is applicable in a change of custody action only after there has been a showing of a change in condition materially affecting the child. Burnham at 8, citing to Odum v. Russell, 342 Ga. App. 392 (2017).

The difference in the standard is important for the practitioner and parent alike.  I once had a client who was awarded physical custody of his child after a hearing in Superior Court. Sometime later his former spouse file a Petition to Modify Custody and Child Support based on alleged conduct of the Father, which Mother claimed was detrimental to the best interest of the child.  My argument to the Court centered on the fact that Mother’s allegations were the exact same ones she raised during the initial custody determination; therefore, she lacked a change in circumstance and her Petition should be dismissed.  What constitutes a change of circumstance is fact specific, but needs to be something different or that was not present at the time the original custody determination was made. See, Cousens v. Pittman, 266 Ga. App. 387 (597 SE2d 486) (2004); Frank v. Lake, 266 Ga. App. 60 (596 SE2d 223) (2004).  Just because a change of circumstance has been found does not necessarily mean custody will be changed. After a change of circumstance has been found then the best interest factors, as set forth in OCGA § 19-9-3 (a) (3) (A)-(Q), will be examined to determine which parent will receive custody.

Remember, that absent an agreement of the parents, to modify a Custody Order you need to first prove a change in circumstance since the Order you are seeking to modify, and then support your position that changing the parent with physical custody is in the child’s best interest by applying the factors listed in OCGA § 19-9-3.

About the Author: Donato “Dan” Palumbo is a Partner with Palumbo Law LLC in Atlanta Georgia. Dan engages in all aspects of family law litigation, including representing clients in divorce matters, custody cases, child support cases, contempt actions and modifications. In addition to family law, Dan is experienced in criminal litigation, including traffic tickets, DUI, misdemeanors, and felony cases. Dan can be reached at: