Scott v. Scott, S02A1909.

• Citation: 578 S.E.2d 876,276 Ga. 372
• Decision Date: 27 March 2003
• Docket Number: No. S02A1909.,S02A1909.
• Parties: SCOTT v. SCOTT.
• Court: Supreme Court of Georgia

578 S.E.2d 876

276 Ga. 372

SCOTT v. SCOTT.

No. S02A1909.

Supreme Court of Georgia.

March 27, 2003.

Browning & Tanksley, LLP, Thomas J. Browning, Marietta, for appellant.

Dupree, Poole & King, Russell D. King, Patrick N. Millsaps, Marietta, for appellee.

HUNSTEIN, Justice.

We granted Regina Scott's application for discretionary appeal to address whether a self-executing change of custody provision in the Scotts' divorce decree was permissible under Weaver v. Jones, 260 Ga. 493, 396 S.E.2d 890 (1990) and Pearce v. Pearce, 244 Ga. 69, 257 S.E.2d 904 (1979). For the reasons that follow, we find that the automatic custody change provision was not a permissible extension of Weaver and Pearce and should be stricken from the parties' divorce decree.

Regina and Charles Scott were divorced in 2001. Custody of their two-year-old daughter was placed jointly in the parties with Ms. Scott given primary physical custody. The divorce decree further provided in Paragraph 3 that

in the event that [Ms. Scott] moves to a residence outside of Cobb County, Georgia, it is hereby ordered and the court specifically finds, that this event constitutes a material change in circumstances detrimentally affecting the welfare of the minor child and that pursuant to Carr v. Carr, 207 Ga.App. 611 (1993), primary physical custody of the minor child shall automatically revert to [Mr. Scott]. This provision is a self-effectuating change of custody provision and no action of the Court shall be necessary to accomplish this change of custody.

The best interests of the child are controlling as to custody changes. OCGA § 19-9-3(a)(2); 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). The law thus recognizes that because children are not immutable objects but living beings who mature and develop in unforeseeable directions, the initial award of custody may not always remain the selection that promotes the best interests of the child.

Self-executing change of custody provisions allow for an "automatic" change in custody based on a future event without any additional judicial scrutiny. Our appellate courts have upheld several such automatic custody change provisions. In Weaver, supra, the parties contemplated that an older child, upon reaching the age of 14, might utilize the statutory procedures allowing a child of that age to choose the parent with whom the child wishes to reside. See OCGA §§ 19-9-1(a)(3)(A), 19-9-3(a)(4). Accord Pearce, supra (under terms of agreement, "each of the children shall be given the opportunity to decide" the parent with whom the child preferred to reside¹). The self-executing change of custody provisions in those two cases thus provided that upon the child deciding to reside with the non-custodial parent, the obligations of the parents would switch automatically without further court intervention. The self-executing change of custody provisions in Weaver and Pearce were thus consonant with statutory and case law, which recognizes that "[a] child's selection of the parent with whom he desires to live, where the child has reached 14 years of age, is controlling absent a finding that such parent is unfit. Without a finding of unfitness the child's selection must be recognized and the court has no discretion to act otherwise. [Cits.]" Harbin v. Harbin, 238 Ga. 109-110, 230 S.E.2d 889 (1976).

The self-executing custody change provisions in Weaver and Pearce pose no conflict with our law's emphasis on the best interests of the child. The same, however, cannot be said of other automatic change of custody provisions the appellate courts have earlier approved. It is well established that "Georgia law does not permit a modification of custody based solely on a custodial parent's relocation" to another home, city or state, Ofchus v. Isom, 239 Ga.App. 738, 739(1), 521 S.E.2d 871 (1999) or merely upon the custodial parent's remarriage. See Mercer v. Foster, 210 Ga. 546(3), 81 S.E.2d 458 (1954). Nevertheless, the appellate courts have ignored this case law to approve self-executing change in custody provisions triggered by remarriage or relocation that mandate, without regard to the child's best interests, the removal of the child from the custodial parent. In Holder v. Holder, 226 Ga. 254, 174 S.E.2d 408 (1970), this Court approved a provision that automatically stripped the mother of custody of her children upon her remarriage. Looking only to whether the provision operated as a restraint upon marriage, this Court concluded that the mother "had the election whether to remarry or to retain custody of the children. She elected to remarry, and thereupon her right to custody under the agreement and decree ceased. [Cits.]" Id. at 256(1), 174 S.E.2d 408. As to the trial court's ruling that there had been no showing of a material change of circumstances substantially affecting the welfare and best interests of the children, we concluded in abbreviated fashion that change of circumstances was "not involved here." Id. at 256(3), 174 S.E.2d 408. See also Hunnicutt v. Sandison, 223 Ga. 301, 303-304(1), 154 S.E.2d 587 (1967) (approving provision in divorce decree granting custody of children to appellant "so long as he did not remarry, and that in the event he remarried, the appellee would have custody of the children").

Likewise, in Carr, supra, expressly relied upon by the trial court here, the divorce decree mandated a change in custody from the primary to the secondary custodial parent "in the event that either parent moves to another city (outside the metropolitan Atlanta area) or another state." Id., 207 Ga. App. at 611, 429 S.E.2d 95. The Court of Appeals upheld the provision looking solely to the fact that it "did not prohibit [Ms.] Carr from moving, it simply set forth self-executing consequences if she decided to do so," id. at 612, 429 S.E.2d 95, and finding the provision "more akin" to the provisions approved by this Court in Weaver and Pearce, supra. Id. at 613, 429 S.E.2d 95.²

We find no kinship between the flexible self-executing change of custody provision in Weaver that is designed to accommodate a 14-year-old child's exercise of his or her statutory right to select the parent with whom the child desires to live, see also Pearce, and the draconian custody change provisions in Carr and Holder that altogether ignore the best interests of the child at the time of the triggering event.³ Once the triggering event occurs—such as remarriage or relocation—the child is automatically uprooted without any regard to the circumstances existing at that time. See Holder, supra at 256(3), 174 S.E.2d 408. These provisions are utterly devoid of the flexibility necessary to adapt to the unique variables that arise in every case, variables that must be assessed in order to determine what serves the best interests and welfare of a child. Unlike the Weaver/Pearce provisions, the purpose of the automatic custody change provisions in Carr/Holder is not to accommodate a child's rights and needs. Rather, the purpose is to provide a speedy and convenient short-cut for the non-custodial parent to obtain custody of a child by bypassing the objective judicial scrutiny into the child's best interests that a modification action pursuant to OCGA § 19-9-3 requires. This "short-cut" operates at the expense of the child, even though

[a] change of custody is just as important to the child and to others as an original award of custody, and the parties should be afforded the same type of hearing on the subsequent application as they are entitled to on an original award. [Cit.], quoting 24 Am.Jur.2d Divorce and Separation § 1008 (1983).

(Punctuation omitted.) Clapper v. Harvey, 716 A.2d 1271, 1275 (Pa.Super.1998).

While self-executing change of custody provisions are not expressly prohibited by statutory law, we hold that any such provision that fails to give paramount import to the child's best interests in a change of custody as between parents violates this State's public policy as expressed in OCGA § 19-9-3.

The trial court here found that relocating the Scotts' child outside of Cobb County "constitutes a material change in circumstances detrimentally affecting the welfare of the minor child." However, self-executing change of custody provisions are not rendered valid merely because the initial award of custody may have been based upon the child's best interests. It is not the factual situation at the time of the divorce decree that determines whether a change of custody is warranted but rather the factual situation at the time the custody modification is sought.⁴ See Mallette v. Mallette, 220 Ga. 401, 403(1), 139 S.E.2d 322 (1964); Danziger v. Shoob, 203 Ga. 623, 625, 48 S.E.2d 92 (1948).

Remarriage and relocation directly affect a child but they do not automatically warrant a change in custody. Mercer, supra, 210 Ga. at 548(3), 81 S.E.2d 458; Ormandy v. Odom, 217 Ga.App. 780, 781, 459 S.E.2d 439 (1995). There are situations, such as the remarriage of a custodial parent to a loving stepparent or the relocation of residence to a superior school district or a safer neighborhood, where the change in circumstances clearly would promote the child's best interests and welfare. See Wallerstein and Tanke, To Move or Not to Move: Psychological and Legal Considerations in the Relocation of Children Following Divorce, 30...