Move Away, Lose Custody

Lower courts now may consider how a parent's move will affect a child and use that as the basis for changing custody rights. Courts “must consider the best interests of the child and cannot apply a bright-line test” in such cases, said Justice Carol W. Hunstein, writing for the majority. Before the decision, a primary caretaker could move without fear of reopening costly and emotional custody issues. Non-custodial parents could seek a change in visitation rights, but they could not contest custody successfully unless they could prove adverse living conditions, according to Randall M. Kessler, a family lawyer with Kessler & Schwarz.

In a stinging dissent, Justice Robert Benham, joined by Justices George H. Carley and Hugh P. Thompson, said the ruling could result in trial courts being bogged down with re-litigating custody cases. The majority opinion ends years of clear rules regarding domestic custody disputes and could result in confusion and costly litigation, Benham wrote. John C. Mayoue of Warner, Mayoue, Bates, Nolen & Collar, who represented the custodial parent in the case, said, “This strikes me as a wholesale rejection of an established body of Georgia custody law. I believe that this will open the floodgates of custody re-litigation and perhaps encourage the renewal of hostilities related to earlier custody decision between parents.” Mayoue said he may ask the court to reconsider the decision.