Deciding Custody Requires a “Forward-Looking Analysis”

(A review of Lowry v Winenger, a 2/23/17 Georgia Court of Appeals Decision)

In Lowry v. Winenger, No. A16A2133, 2017 WL 715956 (Ga. Ct. App. Feb. 23, 2017), Mother and Father divorced in 2013. They were granted shared physical custody of their son, although mother was the designated primary physical custodian. Neither parent was ordered to pay child support.

Just two months after their divorce was finalized, mother remarried, converted to the Mormon faith, and began taking the child to a Mormon church. She encouraged the child’s participation in church related activities. Father, who had final decision making authority over the child’s religious upbringing, objected to the child going to the Mormon church and to his participation in church related activities.

Also following the parties’ divorce, Mother began home hoping. She relocated multiple times, ultimately landing in Hall County. She was not forthcoming about where she and the child would be living during the divorce transition. Her move to Hall County extended the Father’s drive to visit their son by almost an hour. It also made the child’s involvement in Forsyth-based extracurricular activities difficult – activities in which Father had enrolled him. Further, the evidence was that the child became apathetic in his Hall County school, which was not a concern when he was enrolled in a Forsyth County school. Learning all this, the GAL recommended custody be modified, opining that such a change would be in the child’s best interest.

The trial court agreed with the GAL, finding that the Mother’s concealment of her residence from Father was an exercise in poor judgement, that her decision to relocate to Hall County added to the child’s commute and demonstrated an intention to interfere with Father’s relationship with the child, and that the child was apathetic about school because of these changes – irrespective of his continued academic success. The trial court also found that by taking the child to activities at the Mormon church, Mother had disregarded Father’s legal custody rights with regard to the child’s religious upbringing and had created confusion for the child.

The trial court found that there had been a material change in circumstances (negatively) affecting the health and welfare of the child, and that it was in his best interest that custody be modified to Father. Mother was granted visitation rights and directed to pay child support. Mother was also held in contempt for violating the Decree by interfering with Father’s decision making authority with respect to the child’s extracurricular activities and religious upbringing. Mother appealed the trial Court’s Order, claiming the evidence was insufficient to warrant a change of custody.

On review, the Court of Appeals noted that “The record reflects numerous changes in the child’s living, extracurricular, and school arrangements since the parties’ divorce. As to the impact of those changes on the child, the father’s statements regarding the child’s apathy toward schoolwork are evidence of an adverse [e]ffect on the child.” See Fox v Korucu, 315 Ga.App. 851, 855, 729 S.E.2d 16 (2012) (holding that an affidavit submitted by a parent stating that the child was unhappy and stressed about attending her current school was evidence of an adverse change materially affecting the child). “Likewise, the father presented evidence as to differences between the father’s church and the Mormon church attended by the mother and the confusion that the child suffered as a result of his exposure to both systems of belief.” The Court of Appeals held that this evidence was sufficient for the trial court to find that there had been a material change in circumstance adversely affecting the child.

Mother also contend on appeal that the trial court erred by looking to “potential future negative impacts” on the child in determining a current change in circumstances, which claim she sought to buttress with a statement from the trial court’s Order:

The Court also concludes that the Mother has demonstrated that if she maintains custody, she will continue to make decisions which are in her best interest, not the best interest of the [ ] Child. The Mother stated her intention to ignore the Father’s decision making authority. Such decisions will negatively impact [the Child] in the future.

The Court of Appeals, in reviewing the (above) statement, held that “The trial court examined the mother’s current behavior and found, based on the record before it, that she would likely continue disregarding the parenting plan to the child’s detriment. We find no legal error in this analysis.”

The Court of Appeals also reiterated that OCGA § 19-9-3(a)(2) “provides that a judge considering a custody issue ‘may take into consideration all the circumstances of the case … in determining to whom custody of the child should be awarded,’ and that ‘[t]he duty of the judge … shall be to exercise discretion to look to and determine solely what is for the best interest of the child and what will best promote the child’s welfare and happiness….’ The trial court’s task in all custody matters is necessarily a forward-looking analysis, and in such matters it “has very broad discretion, looking always to the best interest of the child.” Autrey, 288 Ga. At 285.

In conducting its analysis, the trial court “had the discretion to consider the evidence before it, including evidence regarding the potential impact on the child should the current custody arrangement continue, the recommendations of the guardian, evidence regarding the actions of one parent to further or impede the child’s relationship with the other parent, the parties’ adherence to the terms of the divorce decree, the mother’s actions to mislead the father and the guardian, and any other relevant factor. In weighing such factors, the trial court concluded that the best interests of the child would be served by a change in the custody arrangement.”

The Court of Appeals affirmed the trial court’s judgment.

Other authorities cited in decision:
Bodne v. Bodne, 277 Ga. 445, 447, 588 S.E.2d 728 (2003).
Kuehn v. Key, 325 Ga.App. 512, 517 (1), 754 S.E.2d 103 (2014).

OCGA § 19-9-3(a)(3)(N)

Rachel has represented parties in family law cases for 21 years. She also serves as a guardian ad litem and child advocate and is a registered domestic relations and domestic violence mediator.