Lewis v. Lewis

Citations: 557 S.E.2d 40; 252 Ga. App. 539; 2001 Fulton County D. Rep. 3642; 2001 Ga. App. LEXIS 1323Docket: A01A1625

Court: Court of Appeals of Georgia; November 20, 2001; Georgia; State Appellate Court

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Lori Jean Lewis appealed the trial court's order granting Stuart Lewis's petition to modify custody of their three children, following their divorce in December 1999, which established joint legal and shared physical custody. Initially, the children resided with Lori during the school year, while Stuart had them every other weekend and on Thursday evenings. During summer, the children lived with Stuart. Lori agreed to maintain her residence in Carroll County for 18 months post-divorce to provide stability for the children. After learning of Lori's plans to remarry and move, Stuart sought a modification to have the children reside with him during the school year, while Lori would have them on alternate weekends; he proposed a reversal of this arrangement in the summer.

During the hearing, the trial court awarded primary physical custody to Stuart. Lori contended the court erred by determining that neither parent had been awarded primary physical custody in the original decree, arguing that under Georgia law, a parent with primary custody should receive deference in modification cases. The court found that both parents had joint physical custody, with neither being designated as the primary custodian. Consequently, both parents had equal prima facie rights to custody. Although Lori noted the children spent more time with her during the school year, the court observed that Stuart also had significant custodial time, leading to a distribution of approximately 60% custody for Lori and 40% for Stuart.

Lori Lewis's custody share does not warrant special deference, despite receiving $600 per month in child support from Stuart Lewis, as this alone does not indicate she was intended to be the primary custodian. The trial court's decision to modify custody based on her proposed move to Cobb County was scrutinized under the requirement of demonstrating a change in conditions affecting the children's welfare, particularly since a permanent custody order was in place. Georgia law stipulates that changes in custody for parents with joint physical custody must be based on evidence of significant changes affecting the welfare and best interests of the child.

Previous cases indicate that a move alone does not suffice to modify custody when one parent is designated as the primary custodian, but the implications of a proposed move are more complex in joint custody situations. Lori Lewis's move would disrupt the existing shared custody arrangement; the children would face a 144-mile round trip for visitation on school nights due to the new school district. Both parents acknowledged the need for modifying the custody arrangement due to these logistical challenges.

The court recognized that difficulties in maintaining a shared custody setup can signify an adverse change in conditions impacting the child's welfare. Past rulings have established that practical challenges in visitation can justify custody modifications, even without direct evidence of adverse effects on the child. Thus, the trial court's consideration of the proposed move's impact on the custody arrangement was appropriate, as both parents agreed that modification was necessary to prevent impracticality in the children's schooling and activities, supporting the conclusion that changes in circumstances warranted a custody modification.

In custody matters involving fit and loving parents with no deference owed to either party, the trial court must prioritize the children's best interests when determining custody arrangements, as outlined in OCGA 19-9-1(a)(2) and 19-9-3(a)(2). The trial court conducted a hearing where it gathered testimonies from friends, a family counselor, and the parents, revealing that the children had strong connections to their community in Carroll County. Evidence indicated that the father maintained frequent contact with the children and that the two older children preferred to remain in Carroll County, expressing concerns about relocating to Cobb County. The mother acknowledged the children's preferences but believed they would adapt to a new environment with extended family nearby. An in camera meeting with the couple's 11-year-old son was held to hear his preferences, though it was not recorded, and while the trial court could consider his opinion, it could not solely rely on it as a material change in circumstances. Ultimately, the appellate review found no abuse of discretion in the trial court's decision to award primary physical custody to Stuart Lewis, emphasizing that the trial court is best positioned to assess credibility and child welfare. The judgment was affirmed, with concurring opinions from Blackburn, C.J., and Mikell, J. Notably, cited cases clarify the standards for custody changes and distinctions in jurisdictional practices regarding the best interest of the child standard.