Bodne v. Bodne, No. S03G0275.

• Court: Supreme Court of Georgia
• Writing for the Court: HUNSTEIN, Justice.
• Citation: 588 S.E.2d 728,277 Ga. 445
• Docket Number: No. S03G0275.
• Decision Date: 10 November 2003
• Parties: BODNE v. BODNE.

588 S.E.2d 728
277 Ga. 445

BODNE
v.
BODNE

No. S03G0275.

Supreme Court of Georgia.

November 10, 2003.

Reconsideration Denied December 11, 2003.

James M. Allison Jr., Douglasville, for appellant.

Warner Mayoue Bates Nolen & Collar, John C. Mayoue, Hope C. Allen, Atlanta, for appellee.

HUNSTEIN, Justice.

Rachel Ann and David Bodne were divorced in 1999. At the time of the divorce, primary physical custody of the two children was placed with Dr. Bodne with the parties agreeing to equally divide the time spent with the children. In 2001, Dr. Bodne, who had remarried and planned to move to Alabama, filed a petition to modify Ms. Bodne's visitation schedule to accommodate the out-of-state move. Ms. Bodne counterclaimed, opposing the move and seeking primary physical custody of the children. The trial

588 S.E.2d 729

court agreed and awarded primary physical custody to Ms. Bodne. The Court of Appeals reversed, finding that in the absence of any reasonable evidence of a substantial change in a material condition affecting the welfare of [277 Ga. 446] the children, see Ormandy v. Odom, 217 Ga.App. 780(1), 459 S.E.2d 439 (1995), where one parent is designated as the primary physical custodian and moves out of state the relocation alone cannot constitute a sufficient change in condition to modify custody. Bodne v. Bodne, 257 Ga.App. 761, 572 S.E.2d 95 (2002). We granted Ms. Bodne's petition for writ of certiorari to determine what weight should be given a custodial parent's move to another state in an action seeking a change in primary physical custody. We conclude that the Court of Appeals erred in holding that a trial court may presume that a custodial parent's decision to move is affirmatively in the best interests of the child, and reverse

When exercising its discretion in relocation cases, as in all child custody cases, the trial court must consider the best interests of the child and cannot apply a bright-line test. This means that an initial custodial award will not always control after any "new and material change in circumstances that affects the child" is considered. Scott v. Scott, 276 Ga. 372, 373, 578 S.E.2d 876 (2003). In Scott, we disapproved a self-executing custody change provision that allowed a child to be automatically wrested from the custodial home without benefit of judicial scrutiny into the child's best interests. Scott reiterated the public policy requirement set forth in OCGA § 19-9-3 that the primary consideration of the trial court in deciding custody matters must be directed to the best interests of the child involved, that all other rights are secondary, and that any determination of the best interests of the child must be made on a case-by-case basis. This analysis forbids the presumption that a relocating custodial parent will always lose custody and, conversely, forbids any presumption in favor of relocation.

The trial court was presented with evidence that Dr. Bodne's decision to move out of state to establish a new medical practice was grounded in a desire to enhance his economic opportunity and to leave behind the pre-divorce chapter of his life. His decision to place his interests first affected Ms. Bodne's ability to continue her equal involvement in the children's lives and also had a direct negative effect on the children. The trial court found that both parties were fit parents, that each parent had established a loving relationship with the children, and that since the time of the divorce the parties shared equal custody, care and access to the children. It further found that Dr. Bodne's decision to move out of state seriously affected an important aspect of the parties' divorce agreement, namely, that Ms. Bodne continue her equal involvement in the children's lives, and had a direct negative effect on the children as testified to by numerous witnesses, including the children's pediatrician, minister, and family friends. Thus, based upon the unanimous testimony of witnesses that the children would suffer irreparable harm in being [277 Ga. 447] denied regular contact with their mother, the trial court determined there was a substantial change in a material condition affecting the children's welfare and exercised its discretion, see Scott, to order a change in primary physical custody to Ms. Bodne. In reversing the trial court, the Court of Appeals applied the rule that automatically assumes a child's best interests are served unless or until it is proved that a derivative effect of the move to the new location places the child at risk. See Ormandy v. Odom, supra, 217 Ga.App. at 780(1), 459 S.E.2d 439. To the extent that case and any other Georgia case presumes the custodial parent has a prima facie right to retain custody unless the objecting parent shows that the environment of the proposed relocation endangers a child's physical, mental or emotional well-being, they are expressly overruled.

Based on our review of this case, we conclude that the order of the trial court reflects that when making its custodial determination based on the best interests of the children standard, it appropriately considered the myriad factors that had a impact on the children as established by the evidence adduced before it. Therefore, the trial court did not abuse its discretion in changing primary physical custody to Ms. Bodne and the Court of Appeals erred by reversing the trial court's ruling.

Judgment reversed.

588 S.E.2d 730

All the Justices concur, except BENHAM, CARLEY and THOMPSON, JJ., who dissent

SEARS, Presiding Justice, concurring.

I completely concur with the majority opinion. I write separately to emphasize that, in relocation disputes, the dissent's focus on the custodial parent's "new family unit" and its deference to the relocation desires of the custodial parent overlooks the importance of the best interests of the child of the divorced parents, of the child's relationship with the non-custodial parent, and of the interests of the larger family created by divorce.

The dissent would subordinate the foregoing interests to the custodial parent's decisions regarding the new family unit, including where it will reside, except in the "`most extreme circumstances.'"¹ For this conclusion, the dissent relies, in part, on an Oklahoma Supreme Court case, Kaiser v. Kaiser,² and Kaiser, in turn, relied on an article³ that concludes that a child's frequency of contact with a non-custodial parent is not related to a child's best interests.⁴ As I [277 Ga. 448] recently noted, the conclusion of that article is "at odds with the stated public policy of this State."⁵ The upshot of the dissent's focus on the "new family unit" headed by the custodial parent would be to make the non-custodial parent (most often the father) an outsider and to place the custodial parent's interests above those of the child. Moreover, this "new-family-unit" approach ignores the fact that a divorce creates a larger, interconnected "binuclear family," consisting of one household headed by the custodial parent and another household headed by the non-custodial parent, with the child being a part of both.⁶ Instead of recognizing the significance of this "binuclear family" to the child, the dissent compares the most critical aspect of a child's life—his family—to "Humpty Dumpty" and states that because the child's family, like Humpty Dumpty, cannot be put back together again, the new family unit must take priority.⁷ Contrary to the...