PREPARE YOUR RELOCATION CASE
We are a mobile society and often the custodial parent will need to file a motion in the family court requesting approval for a relocation. Any request to relocate should be supported by documentation demonstrating that you have though the matter through and that the move is in the child's best interest. To prepare your modification of child custody case, you may wish to include the following:
NEIGHBORHOOD & SCHOOL
Know where you will be living and describe the benefits of the neighborhood and the schools the child will attend (photos are helpful);
Research any daycare facilities that you intend to use and include as part of your motion to relocate a brochure or contract from the provider;
· If you are moving to improve yourself financially, include information regarding your new job or your planned education including any employment contracts or offers, benefit information or brochures.
If there are any health or medical considerations regarding the relocation, include those as part of your motion. For example, if you are moving to a warmer climate that benefits asthma (yours or the child's) include that in your motion.
If the Court allows the relocation, it often requires the party moving to pay more of the transportation costs related to visitation.
There is no "standard" visitation schedule when the visitation must occur at a distance. Often, however, the courts grant the non-custodial parent extended access times for fall breaks, spring breaks, Christmas breaks and summer months. Agreeing to extended visitation will improve your chances of the court continuing to allow you to have custody of the children.
Rachel Ann and David Bodne were divorced in 1999. At the time of the divorce, primary physical custody of the two children was placed with Dr. Bodne with the parties agreeing to equally divide the time spent with the children. In 2001, Dr. Bodne, who had remarried and planned to move to Alabama, filed a petition to modify Ms. Bodne's visitation schedule to accommodate the out-of-state move. Ms. Bodne counterclaimed, opposing the move and seeking primary physical custody of the children.
When exercising its discretion in relocation cases, as in all child custody cases, the trial court must consider the best interests of the child and cannot apply a bright-line test. This means that an initial custodial award will not always control after any "new and material change in circumstances that affects the child" is considered. Scott v. Scott, 276 Ga. 372, 373, 578 S.E.2d 876 (2003). In Scott, we disapproved a self-executing custody change provision that allowed a child to be automatically wrested from the custodial home without benefit of judicial scrutiny into the child's best interests. Scott reiterated the public policy requirement set forth in OCGA § 19-9-3 that the primary consideration of the trial court in deciding custody matters must be directed to the best interests of the child involved, that all other rights are secondary, and that any determination of the best interests of the child must be made on a case-by-case basis. This analysis forbids the presumption that a relocating custodial parent will always lose custody and, conversely, forbids any presumption in favor of relocation.
The trial court was presented with evidence that Dr. Bodne's decision to move out of state to establish a new medical practice was grounded in a desire to enhance his economic opportunity and to leave behind the pre-divorce chapter of his life. His decision to place his interests first affected Ms. Bodne's ability to continue her equal involvement in the children's lives and also had a direct negative effect on the children. The trial court found that both parties were fit parents, that each parent had established a loving relationship with the children, and that since the time of the divorce the parties shared equal custody, care and access to the children. It further found that Dr. Bodne's decision to move out of state seriously affected an important aspect of the parties' divorce agreement, namely, that Ms. Bodne continue her equal involvement in the children's lives, and had a direct negative effect on the children as testified to by numerous witnesses, including the children's pediatrician, minister, and family friends. Thus, based upon the unanimous testimony of witnesses that the children would suffer irreparable harm in being denied regular contact with their mother, the trial court determined there was a substantial change in a material condition affecting the children's welfare and exercised its discretion, see Scott, to order a change in primary physical custody to Ms. Bodne.
The Court of Appeals applied the rule that automatically assumes a child's best interests are served unless or until it is proved that a derivative effect of the move to the new location places the child at risk.
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