Twelve years after the Supreme Court of Georgia first held that self-executing change of custody provisions were not permissible, many questions still exist as to what is and is not permissible when it comes to changes in parenting plans that do not require court intervention. When are they permitted and when are they invalid? When can the parents agree to a modification of child support without court intervention?
It is much more difficult to determine whether a self-executing change to custody provision will be upheld than whether a self-executing change of child support will be upheld. The Supreme Court of Georgia recently summarized the situations were self-executing custody provisions will be stricken as improper.
A review of the case law regarding prohibited self-executing provisions shows that they can generally be summarized as having one of two critical flaws. First, self-executing provisions that rely on a third party’s future exercise of discretion essentially delegate the trial court’s judgment to that third party. And, second, self-executing provisions that execute at some uncertain date well into the future are not permitted because the trial court creating those provisions cannot know at the time of their creation what disposition at that future date would serve the best interests of the child; the passage of time (and thus, likelihood of changed circumstances) is just too great. See Dellinger, 278 Ga. at 735, 609 S.E.2d 331 (automatic change in visitation without any regard to the circumstances existing in the children’s lives at the time of the change is “utterly devoid of the flexibility necessary to adapt to the unique variables that arise in every case, variables that must be assessed in order to determine what serves the best interests and welfare of a child”).
Hardin v. Hardin, (Ga. Ct. App. Aug. 18, 2016).
Here are eight specific situations that the Georgia Supreme Court has considered and that you need to know when drafting your parenting plans.
- A planned event that will occur at a readily identifiable time, such as a child beginning first grade, which is used as a trigger for a change in parenting time, is a permissible self-executing provision.
- An increase in parenting time that followed a strict reunification therapy schedule that is expected to improve the relationship between the child and the parent showed the parents had committed to a course of actin in a given time frame to improve the parent-child relationship and facilitate the increases in visitation and parenting time in the best interests of the child.
- An 18-month change in custody at the end of which time primary custody would return to the other parent is not valid.
- A parent’s visitation may not be changed automatically based on a future event, including the determination of a therapist, without any additional judicial scrutiny.
- Automatically changing custody each year is a prohibited self-executing change of custody.
- Where mother was found to have serious mental health issues, court could not order that she undergo eight weeks of therapy and then have parenting time with the child in a therapeutic setting upon the completion of the eight-week period. The concern was that perhaps the mother would not make progress or follow her therapist’s recommendations, and any change in parenting time must therefore have judicial oversight to determine the child’s best interest.
- An agreement may contain self-executing provisions for the modification of child support, provided that the modified child support amount falls within the Georgia Child Support Guidelines.
- Child support may only be modified prospectively.
If you are confused, you should be. The circumstances under which a provision will or will not be found to be a self-executing material change of visitation or parenting plan is not entirely clear. The best course of action is to contact an attorney for legal advice.