Prater v. Wheeler, 41618

• Decision Date: 04 December 1984
• Docket Number: No. 41618,41618
• Parties: PRATER v. WHEELER.
• Court: Georgia Supreme Court

Page 892

322 S.E.2d 892

253 Ga. 649

PRATER v. WHEELER.

No. 41618.

Supreme Court of Georgia.

Dec. 4, 1984.

Rehearing Denied Dec. 18, 1984.

Thomas E. Greer, Tisinger, Tisinger, Vance & Greer, P.C., Carrollton, for Ray Prater.

Timothy A. McCreary, Howe, Sutton & McCreary, P.C., Tallapoosa, for Joy G. Wheeler, f/k/a Joy Prater.

MARSHALL, Presiding Justice.

The final divorce decree of the parties awarded permanent custody of the parties' 14-year-old son and his seven-year-old brother to the appellant-father with certain visitation rights to the appellee-mother. The mother filed an action for contempt for the father's alleged wilful failure to abide by the final judgment and decree of divorce by wilfully interfering with her visitation and, in particular, the father allegedly claimed that the older minor child does not have to visit with the petitioner-mother because the said child is 14 years of age. After a hearing, the trial judge entered an order holding the defendant-father in wilful contempt as regards the issue of visitation, providing that the father be allowed to purge himself of this contempt by compliance with the visitation provisions of the divorce decree, and issuing a supersedeas as to visitation by the 14-year-old conditioned upon the father's seeking an expedited appeal, which this court has granted. Held:

A child who has reached the age of 14 years has the right to select the parent who will have custody of the child, if such parent is determined by the court to be a fit and proper custodian. OCGA §§ 19-9-1(a), 19-9-3(a). "Visitation privileges are, of course, part of custody. [Cit.]" Ledford v. Bowers, 248 Ga. 804, 805(1), 286 S.E.2d 293 (1982). " 'A divorced parent has a natural right of access to his child awarded to the other parent, and only under exceptional circumstances should the right or privilege be denied.' [Cit.]" Shook v. Shook, 242 Ga. 55, 56(2), 247 S.E.2d 855 (1978).

"The desires of children under 14 years of age in not wanting to visit their [noncustodial parent] is not sufficient to deny [the noncustodial parent] his [or her] rights of visitation. [Cit.]" (Emphasis supplied.) Shook v. Shook, supra, p. 56(2), 247 S.E.2d 855. The issues here are, whether the desire of a child over 14 years of age in not wanting to visit his or her noncustodial parent is sufficient to deny the noncustodial parent his or her rights of visitation, and under what conditions the custodial parent is authorized to withhold visitation privileges with such child from the non-custodial parent.

"In any case in which a judgment awarding the custody of a minor has been entered, on the motion of any party or on the motion of the court, that portion of the judgment effecting visitation rights between the parties and their minor children may be subject to review and modification or alteration without the necessity of any showing of a change in any material conditions and circumstances of either party or the minor, provided that the review and modification or alteration shall not be had more than once in each two-year period following the date of entry of the judgment. However, this subsection shall not limit or restrict the power of the court to enter a judgment relating to the custody of a minor in any new proceeding based upon a showing of change in any material conditions or circumstances of a party or the minor." (Emphases supplied.) OCGA §§ 19-9-1(b), 19-9-3(b). "Modification of child[-]visitation rights is a...