Often after such an upheaval as divorce can bring, a person decides that moving to a new place would be the best option, either to pursue a new career opportunity, to move closer to family and a support network or simply to try and make a fresh start. If a person shares custody of a child under 14 years old in Georgia, however, trying to move becomes a more complicated process. It is important to understand the steps that a parent looking to relocate after divorce needs to take to modify a child custody award and the factors the court will base its decision on when deciding whether to grant the modification.
Georgia law does not specifically address parental relocation other than stating that the party relocating must give the other party 30 days advance notice of the move. The law does not have a presumption regarding distance of the move where it would automatically require either parental permission or court approval, as is the case in some states.
Instead, if one parent seeks to move out of state and the other parent objects, the parent can petition the court for a modification of the custody award on the basis of a significant change in circumstances of one of the parties. Georgia courts do not have a presumption either for or against relocation; instead, the court will assess the situation on a case-by-case basis to determine whether the proposed move is in the best interest of the child. Additionally, Georgia courts do not hold a conclusive presumption that a past custody award is evidence of a legal right to retain custody; it is merely evidence in favor of a parent retaining custody that a court will weigh when determining the child’s best interests.
In order to justify granting a change in custody, the court must find that a change in circumstances exists which affects the welfare of the child and that the child’s best interests lie in modifying the original award. Some of the factors the court will examine when determining the child’s best interest include:
- The relationship between the child and each parent
- The relationship between the child and any siblings and where those siblings live
- The capacity of each parent to carry out his or her parental duties
- Each parent’s knowledge of the child’s needs
- The ability of each parent to provide for the child’s basic material needs
- The safety of the living arrangements of each parent
- The desirability of maintaining continuity in the child’s living arrangements
- The stability of each parent’s family unit and the presence of a community support network for the child with each parent
- The mental and physical health of each parent
- The involvement of each parent in the child’s extracurricular activities
- The child’s school history and educational needs
- Each parent’s past performance of parenting responsibilities
- The willingness and ability of each parent to foster a close parent-child relationship between the child and the other parent
- Any criminal history of either parent or history of domestic abuse
Additionally, if a child is 14 years of age or older, the child’s wishes about where he or she wants to live are controlling under Georgia law, unless the court finds the parent the child chooses unfit. If a child is between 11 and 14 years of age, the child’s preference is one of the factors a court considers when assessing the child’s best interests.
Divorce and the decision to relocate can be trying times for people and requires careful preparation. When a person considering relocating shares custody of a child, it will be necessary to address these issues before any more can be complete.