Sometimes, a custody order may contain a provision calling for a future, automatic change of custody. Because visitation is a part of custody, such provisions may call for a future, automatic change of visitation as well. These provisions are called self-executing change of custody (or visitation) provisions. Are self-executing change of custody provisions valid?
What is an automatic change of custody provision?
An automatic change of custody provision, or self-executing change of custody (or visitation) provision, is a provision in a custody order mandating a change of custody (or visitation) in the future without the court’s involvement. The following is an example:
“The mother shall have primary physical custody of the children. The father shall have visitation with the children every other weekend. Should the mother move out of the state of Georgia, the custody arrangement shall be flipped so that the father would have primary physical custody of the children while the mother would have visitation every other weekend.”
Is self-executing modification of custody provision valid?
Depending on the specific provision, a self-executing modification of custody (or visitation) provision may be valid or invalid. Generally, self-executing change of custody provisions may be against public policy of Georgia, but certain provisions may be allowed.
Invalid self-executing change of custody provision
For example, self-executing change of custody provisions in which the future decision for the change of custody is made by a third party (for example, a therapist) and not the court, such provisions may be problematic.
Thus, a parenting plan that provided the father’s overnight visitation would be supervised by a reasonable adult approved by a therapist treating the child, until such time as the therapist determines that supervision is not necessary and that stated the therapist shall have the authority to determine how supervised visitation should be phased out over time and when supervision may end has been held to be invalid. Johnson v. Johnson, 290 Ga. 359 (2012).
Similarly, self-executing change of custody provisions that calls for an automatic change of custody (or visitation) when a triggering event occurs at some unknown point of time in the future, such provisions may not be allowed. For example, automatic change of custody that occurs based solely on a parent’s relocation or remarriage has been held to be invalid.
Valid self-executing change of custody provision
On the other hand, a provision that provided the father and mother shall alternate physical custody of their child on a weekly basis until the child began first grade, after which the child would live primarily with the mother was held to be valid. This is because the trial court found that the mother had to travel out of town due to her new job and the child had spent additional time with the father while the mother was out of town, and that the child would need the additional stability associated with having one primary residence—which showed that the court gave paramount import to the child’s best interests. Lester v. Boles, 335 Ga.App. 891 (2016).
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