Modification: Child Custody & Parenting Time


Once an initial order of custody and visitation rights is entered, it is not “set in stone” for the remainder of the children’s minority. Custody and visitation rights can be modified.

Generally, modifications may be made under the following circumstances:

  • a substantial or material change in the parents’ circumstances, affecting the child’s welfare;
  • A substantial change in the child’s physical or emotional health care needs;
  • evidence that the custodial parent is unfit to provide appropriate care and support; and
  • evidence that the noncustodial parent is unfit to retain a parental relationship.

Once one of these circumstances is shown, then the court must consider what is in the best interests of the child. Some of the factors that the court considers to determine what is in the child best interests are as follows:

  • the love, affection, bonding, and emotional ties existing between the child and his/her siblings, half-siblings, and step-siblings;
  • each parent’s knowledge and familiarity of the child and the child’s needs;
  • the home environment of each parent;
  • the stability of the family unit of each of the parents;
  • the mental and physical health of each parent;
  • each parent’s employment schedule and related flexibility of schedules;
  • each parent’s past performance and relative abilities for future performance or parenting responsibilities; and
  • the willingness and ability of each of the parents to facilitate and encourage and close and continuing parent-child relationship between the child and the other parent.

In such cases, it may be appropriate or beneficial to request that the court appoint a guardian ad litem to perform an independent investigation and represent the interests of the minor children. If severe stress or emotional problems are being alleged, it can be requested that either or both of the parties, along with the minor children, if appropriate, undergo a court-ordered psychological evaluation. At the conclusion of the guardian ad litem and psychologist’s evaluation/investigation, written reports are typically submitted to the court with their findings, conclusions, and recommendations. It must be remembered that each case is unique and must be specially handled depending upon the individual needs of the client.

Also, visitation rights can be modified every two years without a showing of a substantial change of circumstance or unfitness; it only needs to be shown that the change would be in the children’s best interests. This makes sense when you think about as the children get older their schedules change (e.g., demands of school, extra-curricular activities, social life, etc.); it is important to have a visitation schedule that is pragmatic to your individual situation.

What Happens If The Custodial Parent Wants To Relocate?

In today’s mobile economy, custodial parent relocation is among the leading factors resulting in modification of child custody arrangements. Such a relocation is considered to be a substantial change of circumstance that would warrant a modification of custody. However, as in any modification, the next step is to show what is in the best interest of the child or children: is it to move with the custodial parent or to remain with the non-custodial parent? The court will look at the “ties” that the children have in their current location (e.g., school, activities, family, friends, etc.). As with other types of domestic relations cases, a thorough investigation, during the discovery process, will help prepare you for making such a showing to the court.

Can My Child Choose Who To Live With?

Under Georgia law, a child who attains the age of 14 years has the right to elect with which parent he/she desires to live; this right of election is generally absolute unless the judge finds that it is not in the child’s best interest to have custody placed with the selected parent. In such a case, the election of a 14 year old can be the basis of a modification of custody. In addition, in cases where a child has reached the age of 11 years but not 14 years, a judge will consider the desires of the child in determining which parent should have custody but such desires are not binding on the judge; the desires of such children cannot solely be the basis of a modification of custody.