Years after a divorce, many circumstances may have changed. No matter how much time has passed since your divorce, when support modifications or custody modifications are needed, contact Candace M. Williams, P.C. law firm in Gainesville, Georgia. I can explain the modification process, the burden of proof on the filing party, and the necessary evidence often recommended to succeed.
After child custody has been initially determined, a court may modify the initial custody order upon a showing that new and material conditions exist which substantially affect the interests and welfare of the child since the rendering of the initial custody decision. Slade v. Slade, 212 Ga. 758 (1956). In child custody modification cases in Georgia, presiding courts must apply the best interest of the child test and may not apply a bright line rule which assumes that the custodial parent has a prima facie right to retain custody. Bodne v. Bodne, 277 Ga. 445 (2003). Thus, in modification or change of custody cases, the initial custody award will not necessarily control after any new and material change in circumstances affecting the child have been considered. Id. What this means in essence is that in a case concerning the modification of child custody, the parent who currently possesses custody will not be granted the right to retain custody automatically.
In order for a court to grant a parent’s application for a change in child custody, there must be a showing that a change in condition or circumstance that substantially affects the welfare of the child involved has occurred. To change a prior child custody award, a court must find that either the original custodian is no longer able or suited to retain custody or that the conditions surrounding the child have changed to the extent that the child’s welfare is affected and the welfare of the child requires a modification of the original award. Green v. Krebs, 245 Ga.App. 756 (2000); Elders v. Elders, 206 Ga. 297.
Upon the appropriate evidentiary showing, the court may change custody by awarding either parent sole custody, or by awarding the parents joint custody, joint legal custody or joint physical custody. A court may also modify visitation rights in the context of a modification proceeding if the court deems that such a change is necessary. The presiding court may make such a modification to visitation rights on its own motion, without either party making a showing or application for such a modification. Tirado v. Shelnutt, 159 Ga.App 624 (1981). As with the initial determination of custody, courts will only enter an order modifying child custody if such and order will serve the best interest of the child involved. See generally O.C.G.A. § 19-9-1.