Bankston vs. Warbington, A14A1514 and A14A1515 (April 13, 2015).

The parties were never married and had one child together.  Shortly after the Father legitimated the child and was granted visitation, the Mother relocated outside the State of Georgia.  As a result, the Father filed a modification of custody action but the parties eventually entered into a consent order that modified the Father’s visitation to take into account the long distance between the parties’ residences.  Subsequently, the Father filed another modification of custody against the Mother, alleging that the Mother had not provided a stable environment for the child and alienated the child from the Father.

After a trial, the trial court found that a material change of condition had occurred as it recounted examples of the Mother’s alienating behaviors.  Then, citing O.C.G.A. § 19-9-3(a)(3)(N), the trial court found that the Mother did not facilitate and encourage a relationship between the Father and minor child.  Thus, it was in the best interests of the child for her to “be immersed in the Father’s household for a period of time.”  As a result, the trial court granted custody to the Father for a period of eighteen (18) months, and then custody would return to the Mother.  Following the filing of nine (9) post-trial motions by the Mother, both parties appealed the trial court’s decision.

The Court of Appeals of Georgia held that the self-executing provision violated the public policy of the State of Georgia as it did not consider the best interests of the minor child at the time of the triggering event (i.e., the expiration of the eighteen (18) month period).  As such, the Court vacated that portion of the trial court’s order.