Gallo v. Kofler.
| Decision Date | 13 June 2011 |
| Docket Number | No. S11A0185.,S11A0185. |
| Parties | GALLOv.KOFLER. |
| Court | Georgia Supreme Court |
289 Ga. 355
711 S.E.2d 687
11 FCDR 1728
GALLO
v.
KOFLER.
No. S11A0185.
Supreme Court of Georgia.
June 13, 2011.
[711 S.E.2d 688]
James Stephen Lewis, Atlanta, for appellant.Catherine B. Sanderson, for appellee.MELTON, Justice.
[289 Ga. 355] Margaret Gallo (“Mother”) and John Kofler (“Father”) were divorced pursuant to a March 10, 2009, Final Decree. The Final Decree incorporated the parties' Settlement Agreement, which gave the parties joint legal custody of their minor child, and named Mother as the primary legal custodian of the child. In late April 2009, Mother notified Father that she was going to move with the child to New York on July 1, 2009. Father then filed a Complaint for Modification of Child Custody on June 3, 2009, asking the trial court to transfer primary legal and physical custody of the child to him. Following a hearing, the trial court issued a June 30, 2010 order concluding that primary custody of the child should be granted to Father. Mother appeals from this ruling. For the reasons that follow, we affirm.
1. Mother contends that the trial court erred by transferring primary custody to Father based on Mother's planned move to New York. We disagree.
The best interests of the child are controlling as to custody changes. OCGA § 19–9–3(a)(2); [289 Ga. 356] Parr v. Parr, 196 Ga. 805, 27 S.E.2d 687 (1943). Whether particular circumstances warrant a change in custody is a fact question determined under the unique situation in each individual case. Wilson v. Wilson, 241 Ga. 305, 245 S.E.2d 279 (1978). In contemplating a custodial change, the trial court must exercise its discretion to determine whether a change is in the best interests of the child. OCGA § 19–9–3. The circumstances warranting a change in custody are not confined to those of the custodial parent: any new and material change in circumstances that affects the child must also be considered. Handley v. Handley, 204 Ga. 57, 59, 48 S.E.2d 827 (1948).
(Emphasis supplied.) Scott v. Scott, 276 Ga. 372, 373, 578 S.E.2d 876 (2003). In this regard, this Court has made clear that self-executing change of custody provisions thatwould automatically change custody to a non-custodial parent in the event that the custodial parent moved to another location at some point in the future are invalid. Id. at 374, 578 S.E.2d 876 (“ ‘Georgia law does not permit a modification of custody based solely on a custodial parent's relocation’ to another home, city or state, ... or...
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