November 2020 was not a busy month for family law cases. Indeed, the Court of Appeals released only one custody related opinion in November 2020.
The Statewide Judicial Emergency remains in effect until December 9, 2020. See the eighth extension to Georgia’s Statewide Judicial Emergency, and other orders, notices and resources relevant to our family law practices on my Covid-19 Pandemic: Family Law Updates and Resources page.
Burnham v. Burnham, Case No. A20A1243, Georgia Court of Appeals, November 2, 2020.
This is the second appearance of this case in the Court of Appeals. The parties had joint legal custody of their two children, with Mother having primary physical custody. Both parents agreed to live within 120 miles of the marital home for so long as the children are minors. Eventually, Mother notified Father of her intent to move to another county, but within the agreed upon 120 miles. So, Father petitioned for primary physical custody.
In Burnham v. Burnham, 350 Ga. App. 348 (2019), the Court of Appeals vacated and remanded the trial court’s judgment for the requisite findings regarding changes in circumstances. On remand, the trial court enumerated in its order several findings and material changes in circumstances, justifying a change in custody. Then, finding that it was in the children’s best interests, the trial court awarded custody of the children to Father. Mother now appeals the trial court’s second order, contending that since her relocation was within the 120 miles contemplated in their agreement, the trial court erred by finding a material change in circumstances.
Affirmed. The trial court properly considered multiple factors affecting the children, in addition to Mother’s move. Standing alone, relocation of one parent is not a material change of circumstance sufficient to justify a modification of custody. Rather, as in this case, the court may also consider the children’s living arrangements, their relationships with and time spent with Father, other family members and friends, and their participation in church and extracurricular activities, among other things. Furthermore, contrary to Wife’s assertion, the relocation provision did not serve as a waiver to modify custody. Unless prohibited by statute or public policy, parents may, in fact, agree to waive their statutory and constitutional rights. However, waivers “must be cast in very clear waiver language,” and must identify, at least, the specific right waived. In the instant case, the 120-mile relocation provision did not contain clear waiver language.
PRACTICE CONSIDERATION: The parties’ divorce agreement and parenting plan were downloaded from a popular website that provides legal forms. As in this case, family law attorneys see many former pro se clients to address the issues that arise from using downloadable forms. Check out my Litigation Support for Attorneys page to see what I can do to provide support and assistance in developing strategies and navigating through the difficulties created by these issues. The fresh perspectives and litigation support may be exactly what you need!
FOR SELF-REPRESENTED PARTIES: In many do-it-yourself cases, downloaded forms from legal websites are adequate. However, every custody situation is different. And, importantly, court orders are legally binding. To avoid common missteps and to minimize the possibility of future litigation, make sure you fully understand the consequences of the documents you are signing before you sign them. A one-time consultation with an experienced family law and custody attorney to answer your general questions, and to give you some insight and perspective to help you weigh your options, can make all of the difference in the world. Contact me now to schedule your consultation.