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For many parents, the first child custody agreement they have is from when their children were little. But what worked then might no longer make sense. While it would be nice if parents could have a child custody agreement that grows with their children, this isn’t always feasible. Thankfully, parents can petition the court to modify their child custody agreement. However, Georgia laws place limits on how, why, and when parents can request modification.
When one or both parents want to modify the current child custody arrangement, they must begin the process by filing with the court. This is a separate and new legal action from the original custody determination and ruling. Generally, the filing must be with the court in the county where the custodial parent and child live.
After the petition is filed, the other parent will be served. This gives them notice of the legal action. A temporary hearing may be held to address pressing matters. There could also be an appointment of a guardian ad litem or a custody evaluation. Depending on the circumstances, there could be multiple hearings scheduled. It’s at the final hearing where the judge will consider the evidence presented, hear both parents' arguments against the change, and apply Georgia’s best-interest factors. The judge will then issue a ruling to modify the custody arrangement or leave it the same.
While parents are not required to hire a lawyer to file, it can be helpful. A lawyer will know what’s required to have a successful modification filing. They can assist with gathering and presenting evidence. A lawyer can also address potential arguments presented by the other parent against modification.
Not every change to a custody order is actually a custody modification. If you're asking to change which parent has legal or physical custody, Georgia generally requires a material change in circumstances affecting the child's welfare. But if you're asking to change the parenting schedule or visitation terms, the rules are different.
Under O.C.G.A. § 19-9-3(b), the court can review and modify visitation or parenting time without requiring proof of a material change, but generally not more than once every two years after the custody judgment was entered. So, yes, you can change visitation in Georgia without a material change. That doesn't mean you can change it whenever you want. The two-year rule still applies.
Parents must follow the child custody order that is issued by the court. That can become difficult or even impossible when life circumstances change. Thankfully, the court recognizes that what worked when children are little may no longer make sense as they grow and develop. Parent’s circumstances can also change, resulting in negative impacts for their children. One or both parents can petition the court to modify the parenting plan to address these changing needs.
However, parents can’t seek a modification simply because they want one or don’t like their child custody plan. In order for the court to consider a modification request, the parent making the request must show that there has been a material change. That material change also needs to have an impact on the child’s welfare in some capacity. Being unhappy with the current schedule, disagreeing with the other parent's choices, or simply believing you could provide a better arrangement isn't enough by itself.
Once the court recognizes that there was a material change, it will evaluate if the modification requested addresses the material change and is in the child’s best interest.
A material change isn't simply something new in a parent's life. It has to be significant enough to affect the child's welfare. There’s no law that has a defined list of qualifying changes. The law gives judges discretion so they can meet the individual needs of families and children. However, there are some common circumstances that have been routinely recognized as a material change, including:
The key is the connection between the change and the child. Georgia courts don't modify custody simply because a parent remarried, moved, changed jobs, or otherwise experienced a major life event. The circumstances must have a meaningful effect on the child's welfare.
While courts will consider a child’s preferences, this is generally not the only factor considered. Additionally, courts will generally only consider a child’s preference if they meet certain conditions. For a child who has reached 11 but not yet 14, the court must consider the child's desires and educational needs, but they aren't controlling. A child who has reached 14 has the right to select the parent with whom they want to live, and that selection can itself constitute a material change. The court will generally honor that preference. However, the change is subject to the best-interest standard and limited to once every two years from a prior election.
Before filing a custody modification, make sure you have a qualifying reason for wanting things to change. Georgia law generally requires a material change affecting your child's welfare, and knowing whether your circumstances meet that standard can make the difference between a modification worth pursuing and a costly trip to court that goes nowhere.
NVP Family Law helps Georgia parents with child custody matters, including determining child custody, enforcement, and modification of orders. If you're considering a modification or have received a petition from the other parent, contact NVP Family Law to discuss your situation before taking the next step. We welcome you to contact us for a consultation online or by calling 470-314-0253 to learn how we can help.
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