Move Away, Lose Custody

Divorced parents who move out of state risk losing custody of their children, according to a recent decision by the Georgia Supreme Court. The court overruled years of Georgia case law when it ruled 4-3 that custody issues can be revisited if the primary guardian decides to leave the state. Bodne v. Bodne, S03G0275, Nov. 11, 2003.

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.

In this case, according to the court decision, parents Rachel Ann Bodne and David Bodne, who were divorced in 1999, shared equal custody of their two children, but David Bodne, a physician, had primary physical custody. In 2001, Dr. Bodne, who had remarried, planned to move to Alabama to open a new medical practice. He filed a petition to modify his ex-wife's visitation schedule; she counterclaimed, stating she opposed the move and seeking primary custody of the children, according to the decision. The trial court ruled in favor of Rachel Bodne, granting her primary physical custody of the children, and David Bodne appealed to the Georgia Court of Appeals, winning a reversal. The court of appeals found an absence of evidence that the material condition of the welfare of the children was going to change due to their father's move. The court therefore reinstated his custodial rights. The appeals court reasoned that the doctor's move was in the best interests of the children, and cited Ormandy v. Odum, 217 Ga. App 780, to justify the decision not to reopen the custody issue.

Child's Interests Come First

The mother then appealed to the Georgia Supreme Court, which took the case “to determine what weight should be given a custodial parent's move to another state in an action seeking a change in primary physical custody,” according to the high court's decision. The majority opinion reversed the court of appeals and reinstated the trial court's decision to grant custody to the mother.

Dissenters Predict More Litigation

The dissenters were shocked that the majority would overturn years of Georgia case law. “The opinion of the majority in this case abandons clear and workable guidelines for resolving conflicts regarding the custody of children, substituting a vague and undefined overarching principle for specific and objective rules of law which have been a useful part of this state's jurisprudence for many years,” Justice Benham wrote for the dissent.

“The effect of this change in the law will be increased litigation, uncertainty in the area of domestic law, increased cost for the parties attendant to the expansion of litigation, unnecessarily contentious custody proceedings and inconsistency from circuit to circuit, court to court and judge to judge.” He called the new law amorphous, saying it puts the courts in jeopardy of uprooting children at “every dissatisfaction” of a noncustodial parent with the parenting of the custodial parent.

Benham added, “In an increasingly mobile society with a divorce rate of 50%, many jurisdictions in this country have dealt with the issues arising from a custodial parent's need or desire to move away from the location of the former marital residence to change jobs or to start a new family.”

Hope for the Family

Presiding Justice Leah Ward Sears wrote a concurring opinion, responding to Benham's dissent. In her opinion, Sears expressed optimism that broken families can be put back together. Sears said she believes “a child's family, though altered by divorce, has the potential to coalesce and meld into a viable 'binuclear family' and to act together to further the best interests of the child.” All the ties the child has, to both families and the child's school and friends, make up the complex equation that must be considered in relocation cases, Sears wrote.

Kessler, the family law practitioner, said the net result of the majority's decision is that divorced parents will be forced to communicate better about moving.

Editor's Note: An in-depth review of this case and its possible far-reaching consequences will appear in the March Issue of this newsletter.

Divorced parents who move out of state risk losing custody of their children, according to a recent decision by the Georgia Supreme Court. The court overruled years of Georgia case law when it ruled 4-3 that custody issues can be revisited if the primary guardian decides to leave the state. Bodne v. Bodne, S03G0275, Nov. 11, 2003.

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.

In this case, according to the court decision, parents Rachel Ann Bodne and David Bodne, who were divorced in 1999, shared equal custody of their two children, but David Bodne, a physician, had primary physical custody. In 2001, Dr. Bodne, who had remarried, planned to move to Alabama to open a new medical practice. He filed a petition to modify his ex-wife's visitation schedule; she counterclaimed, stating she opposed the move and seeking primary custody of the children, according to the decision. The trial court ruled in favor of Rachel Bodne, granting her primary physical custody of the children, and David Bodne appealed to the Georgia Court of Appeals, winning a reversal. The court of appeals found an absence of evidence that the material condition of the welfare of the children was going to change due to their father's move. The court therefore reinstated his custodial rights. The appeals court reasoned that the doctor's move was in the best interests of the children, and cited Ormandy v. Odum , 217 Ga. App 780, to justify the decision not to reopen the custody issue.

Child's Interests Come First

The mother then appealed to the Georgia Supreme Court, which took the case “to determine what weight should be given a custodial parent's move to another state in an action seeking a change in primary physical custody,” according to the high court's decision. The majority opinion reversed the court of appeals and reinstated the trial court's decision to grant custody to the mother.

Dissenters Predict More Litigation

The dissenters were shocked that the majority would overturn years of Georgia case law. “The opinion of the majority in this case abandons clear and workable guidelines for resolving conflicts regarding the custody of children, substituting a vague and undefined overarching principle for specific and objective rules of law which have been a useful part of this state's jurisprudence for many years,” Justice Benham wrote for the dissent.

“The effect of this change in the law will be increased litigation, uncertainty in the area of domestic law, increased cost for the parties attendant to the expansion of litigation, unnecessarily contentious custody proceedings and inconsistency from circuit to circuit, court to court and judge to judge.” He called the new law amorphous, saying it puts the courts in jeopardy of uprooting children at “every dissatisfaction” of a noncustodial parent with the parenting of the custodial parent.

Benham added, “In an increasingly mobile society with a divorce rate of 50%, many jurisdictions in this country have dealt with the issues arising from a custodial parent's need or desire to move away from the location of the former marital residence to change jobs or to start a new family.”

Hope for the Family

Presiding Justice Leah Ward Sears wrote a concurring opinion, responding to Benham's dissent. In her opinion, Sears expressed optimism that broken families can be put back together. Sears said she believes “a child's family, though altered by divorce, has the potential to coalesce and meld into a viable 'binuclear family' and to act together to further the best interests of the child.” All the ties the child has, to both families and the child's school and friends, make up the complex equation that must be considered in relocation cases, Sears wrote.

Kessler, the family law practitioner, said the net result of the majority's decision is that divorced parents will be forced to communicate better about moving.

Editor's Note: An in-depth review of this case and its possible far-reaching consequences will appear in the March Issue of this newsletter.