Presumption in favor of relocating custodial parent is no longer applicable in Georgia

This case was decided a few years ago, but it was a major turning point in Georgia law on relocation: Bodne v. Bodne, 588 S.E.2d 728 (Ga. 2003).

The Georgia Supreme Court held there will no longer be a presumption in favor of allowing a custodial parent to relocate and, instead, courts must look at each case to determine what is in the child’s best interest.

Here, divorced parents shared equal custody of their children. The father subsequently filed a petition to modify the mother’s visitation so that he could move out-of-state with the children. The mother counter-sued for custody. The trial court awarded custody to the mother. An appellate court reversed, finding that Georgia jurisprudence has long held that relocation is not enough to create a substantial change in circumstances.

Reversing, the state high court held that the best interest of the child is the primary concern, and there is no longer a prima facie presumption that relocation is in die child’s best interest. Relocation is a material change in circumstances and as such, custody issues can be revisited. The determination of the child’s best interest, the court said, must be made on a case-by-case basis, without a presumption either way. Thus, contrary to past holdings, a party is not required to demonstrate the move would put the child at risk, but just that it would not be in the child’s best interest.

The court found that in the instant case, the trial court had carefully considered several factors and decided the best interests of the children would be served by placing them in their mother’s custody. There was evidence the relocation and subsequent decrease in contact with their mother would cause irreparable harm to the children.


Judge is usually the deciding factor in a divorced parent’s move

Today’s mobile society means that more divorced parents are relocating for better jobs or a better life — and they want to take the kids with them. Divorced parents who want to move out of state — or even 100 miles away within the same state — should be prepared for the court that’s overseeing the terms of the divorce to look at a number of elements before allowing the move.

The most important factor is the type of custody arrangement, says Nadine Roddy, senior research attorney at the Charlottesville, Va.-based National Legal Research Group.

"If it was a traditional arrangement and one parent has sole custody and the other has visitation rights, it’s much easier for the custodial parent to relocate out of state than if there’s joint custody, where parents share physical custody."

But joint custody is pretty much the norm.

"The model of mom getting sole custody and dad appearing on the Fourth of July has pretty much been abandoned," says Roddy. "Dads are more involved."

State laws vary
The next factor is whether the state has a statute that specifically addresses relocation. Roddy says Nevada bars the custodial parent from permanently removing the child from the state without court permission. On the other hand, some states say the custodial parent has the absolute right to move and the burden is on the other parent to file a restraining order.

It’s a battle that’s being fought in family courts across the country.

Peter Herard of Palm Springs, Fla., says his ex-wife wanted to take their two children, ages 9 and 5, and move to Georgia to be closer to her family.

"I didn’t think it was a good idea that they move. She called with different setups — you can have them all summer, etc.," says Herard. "It might have worked out to be more time with them but it wouldn’t have been consistent. I’d go without seeing them for nine months and then see them for three months — it’s like being with a stranger."

The judge apparently didn’t think it was a good idea either. Herard won his court case and his ex-wife and children remain in Florida.


An Analysis of Georgia House Bill 369: Requirements for Relocation and Changes of Addresses of Parents and Children

Section 5 of HB 369 is where the most substantial changes to Georgia law were made in the bill. It affected several existing Code sections and I will address each by reference to the statute it changed or added.

Subsection (f) of OCGA section 19-9-3 provides for notice of relocations and changes of addresses of either parent as follows:

“(1) In any case in which a judgment awarding the custody of a child has been entered, the court entering such judgment shall retain jurisdiction of the case for the purpose of ordering the custodial parent to notify the court of any changes in the residence of the child.

(2) In any case in which visitation rights or parenting time has been provided to the noncustodial parent and the court orders that the custodial parent provide notice of a change in address of the place for pickup and delivery of the child for visitation or parenting time, the custodial parent shall notify the noncustodial parent, in writing, of any change in such address. Such written notification shall provide a street address or other description of the new location for pickup and delivery so that the noncustodial parent may exercise such parent´s visitation rights or parenting time.

(3) Except where otherwise provided by court order, in any case under this subsection in which a parent changes his or her residence, he or she must give notification of such change to the other parent and, if the parent changing residence is the custodial parent, to any other person granted visitation rights or parenting time under this title or a court order. Such notification shall be given at least 30 days prior to the anticipated change of residence and shall include the full address of the new residence.”

Research Local (and Distant) Schools Online

Ben Stevens at The South Carolina Family Law Blog, posts a nice online link for a useful resource in move away cases.

Parents are moving today more than ever.  In fact, I receive calls almost every week about these "parental relocation cases."  One of the (many) issues that the Court considers in such cases is the quality of the schools in each location. 

Fortunately, it is now easier than ever to find out necessary information about educational institutions located far away, thanks to Yahoo Real Estate.  This free service allows you to research both public and private schools in any state by city name or even by zip code.

The information provided includes contact information, enrollment, student to teacher ratio, and location on an interactive map.  There are also reports available on the school’s test scores, students, and teachers.  This resource can prove extremely helpful as a starting point when a child’s eduction is at issue, and I urge you to check it out.

Source:  "Find School Info With Yahoo School Search" by Wendy Boswell, publishd at LifeHacker.