How to Modify a Custody Order in Georgia

Two different standards

Section 19-9-3(b) of the Georgia Code sets out the rules for changing a custody judgment, and it separates two kinds of change:

• Visitation and parenting time. Once a judgment awarding custody has been entered, the part of it that sets visitation or parenting time may be reviewed and modified, on the motion of any party or of the judge, without any showing of a change in material conditions and circumstances. This review may not be had more often than once in each two-year period following the date the judgment was entered.
• Custody. The same subsection says it does not limit the judge’s power to enter a judgment relating to custody in any new proceeding based upon a showing of a change in any material conditions or circumstances of a party or the child.

Whatever path you take, the judge’s duty is to determine solely what is for the best interest of the child and what will best promote the child’s welfare and happiness (§ 19-9-3(a)(2)). The judge may consider all the circumstances of the case, including the improvement of the health of the party seeking a change in custody provisions. See the custody factors guide for the list in § 19-9-3(a)(3).

When a child turns 14, or is 11 to 13

Georgia gives older children a defined role, and the statute ties it directly to modification:

• Age 14 and older. The child has the right to select the parent with whom he or she desires to live, and that selection is presumptive unless the parent selected is determined not to be in the child’s best interests. The selection may, in and of itself, constitute a material change of condition or circumstance in an action to modify custody, but it may only be made once within two years from the date of the previous selection, and the best interests standard still applies (§ 19-9-3(a)(5)).
• Ages 11 through 13. The judge must consider the child’s desires and educational needs, but the child’s desires are not controlling and the judge has complete discretion. The selection of a child this age does not, in and of itself, constitute a material change of condition or circumstance. The judge may grant temporary custody to the selected parent for a trial period of up to six months where the judge determines such a temporary order is appropriate (§ 19-9-3(a)(6)).

Where to file

A complaint seeking a change of legal custody or physical custody must be initiated in compliance with Article VI, Section II, Paragraph VI of the Georgia Constitution (§ 19-9-23(a)). That paragraph provides that civil cases not otherwise covered are tried in the county where the defendant resides. Venue questions can turn on facts, so confirm the right county before you file.

The same Code section limits how the request can be raised:

• A complaint to change custody may not be made in response to a petition for a writ of habeas corpus seeking to enforce a custody order, or in response to any other action or motion seeking to enforce a custody order, including a motion for contempt (§ 19-9-23(b)).
• A complaint in the nature of habeas corpus seeking a change of custody is prohibited (§ 19-9-23(c)).
• A party may bring a counterclaim for modification of legal or physical custody in response to a complaint to change custody (§ 19-9-23(d)).

What the case involves

1. The complaint. The Supreme Court of Georgia’s Superior Court standard forms do not include a complaint to modify custody. Some superior courts publish their own packets, so check with your county’s superior court.
2. A parenting plan. A parenting plan is required for permanent custody and modification actions, and the final order in a modification action must incorporate a permanent parenting plan (§ 19-9-1(a)). Uniform Superior Court Rule 24.10 applies the same requirement to custody modification cases, except when a parent seeks emergency relief for family violence. See the parenting plan guide.
3. Financial papers if support is at issue. Before any temporary or final hearing on modification of child support, each party serves a Domestic Relations Financial Affidavit, and in child support cases the worksheets and schedules, on the other party (Uniform Superior Court Rule 24.2).

Temporary changes while the case is pending

Once an action for a change of custody is filed, the judge may, in his or her discretion, change the terms of custody on a temporary basis pending final judgment. A temporary award does not constitute an adjudication of the rights of the parties (§ 19-9-3(e)).

When both parents agree

Parents may present the judge with an agreement on any and all custody issues, including joint custody. The judge must ratify the agreement and make it part of the final judgment unless the judge makes specific written factual findings that the agreement would not be in the best interests of the child, and the judge may not refuse to ratify it based solely on the parents’ choice of joint custody. The judge may supplement the agreement on issues it does not cover (§ 19-9-5). Under § 19-9-5(a), “custody” in this sense does not include payment of child support.

Military parents

Section 19-9-3(i) adds rules when a military parent is deployed. Among them:

• A court may not enter a final order modifying parental rights and responsibilities under an existing parenting plan earlier than 90 days after the deployment ends, unless the deployed parent agrees (§ 19-9-3(i)(1)).
• Petitions for temporary modification because of a deployment are heard as expeditiously as possible (§ 19-9-3(i)(3)).
• On a petition for permanent modification, the court may not hold a final hearing until at least 90 days after the deploying parent’s final return, and the predeployment plan or order is presumed to still serve the child’s best interest (§ 19-9-3(i)(12)).

Section 19-9-3(b) also provides that a military parent’s absences caused by deployments, or the potential for future deployments, may not be the sole factor supporting a claim of a change in material conditions or circumstances, though the court may consider evidence of the effect of a deployment.

Changing child support is a separate standard

A change in custody does not by itself rewrite child support. Child support is modified under its own rules in O.C.G.A. § 19-6-15(k), which generally require a substantial change in either parent’s income and financial status or the needs of the child, and limit how often the same parent may petition. See the child support guide.

Primary sources

Laws, rules and forms change. Check the current version at the source before you file.

• O.C.G.A. § 19-9-3, establishment and review of custody
• O.C.G.A. § 19-9-23, actions to change custody
• O.C.G.A. § 19-9-24, actions not permitted
• O.C.G.A. § 19-9-1, parenting plans
• O.C.G.A. § 19-9-5, custody agreements
• O.C.G.A. § 19-6-15, child support guidelines
• Georgia Constitution, Art. VI, Sec. II, Para. VI, venue
• Uniform Superior Court Rules 24.2 (financial data) and 24.10 (parenting plans)