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Divorced parents who move out of state risk losing custody of their children, according to a decision this week by the Georgia Supreme Court. The court overruled years of Georgia case law when it ruled 4-3 that custody issues can be revisited if the primary guardian decides to leave the state. Lower courts now may consider how a parent’s move will affect a child and use that as the basis for changing custody rights. Courts “must consider the best interests of the child and cannot apply a bright-line test” in such cases, said Justice Carol W. Hunstein, writing for the majority. Before Monday’s decision, a primary caretaker could move without fear of reopening costly and emotional custody issues. Previously, non-custodial parents could seek a change in visitation rights, but they couldn’t contest custody successfully unless they could prove adverse living conditions, according to Randall M. Kessler, a family lawyer with Kessler & Schwarz. Kessler, who frequently lectures on family law, said the ruling will have “a gigantic impact on custody cases. It’s been a long time coming. Finally, the tide is starting to turn towards common sense.” But in a stinging dissent, Justice Robert Benham, joined by Justices George H. Carley and Hugh P. Thompson, said the ruling could result in trial courts being bogged down with re-litigating custody cases. The majority opinion ends years of clear rules regarding domestic custody disputes and could result in confusion and costly litigation, Benham wrote in Bodne v. Bodne, S03G0275. John C. Mayoue of Warner, Mayoue, Bates, Nolen & Collar, who represented the custodial parent in the case, said, “This strikes me as a wholesale rejection of an established body of Georgia custody law. I believe that this will open the floodgates of custody re-litigation and perhaps encourage the renewal of hostilities related to earlier custody decision between parents.” Mayoue said he may ask the court to reconsider the decision. Hope C. Allen also worked on the case. Winning attorney James M. Allison Jr. of Douglasville, Ga., couldn’t be reached for comment. Kessler said the facts in Bodne provided the perfect test case to challenge Georgia law. “If not now, the Supreme Court was never going to overturn case law,” said Kessler. “This seemed to be such a good case because the parents had 50-50 custody rights.” In this case, according to the court decision, parents Rachel Ann Bodne and David Bodne, who were divorced in 1999, shared equal custody of their two children, but David Bodne, a medical doctor, had primary physical custody. In 2001, David Bodne, who had remarried, planned to move to Alabama to open a new medical practice. He filed a petition to modify his ex-wife’s visitation schedule. But she counterclaimed, stating she opposed the move and sought primary custody of the children, according to the decision. Carroll County Superior Court Judge Aubrey Duffey ruled in favor of Rachel Bodne, granting her primary physical custody of the children. David Bodne appealed to the Georgia Court of Appeals and won a reversal of Duffey’s decision. The Court of Appeals found an absence of evidence that the material condition of the welfare of the children was going to change due to their father’s move. The court therefore reinstated his custodial rights. The appeals court reasoned that the doctor’s move was in the best interests of the children, and cited Ormandy v. Odum, 217 Ga. App 780, to justify the decision not to reopen the custody issue. CHILD’S INTERESTS COME FIRST The mother then appealed to the Supreme Court, which took the case “to determine what weight should be given a custodial parent’s move to another state in an action seeking a change in primary physical custody,” according to Monday’s decision. The majority opinion reversed the Court of Appeals and reinstated the trial court’s decision to grant custody to the mother. Hunstein wrote, “The Court of Appeals erred in holding that a trial court may presume that a custodial parent’s decision to move is affirmatively in the best interests of the child. … When exercising its discretion in relocation cases, as in all child custody cases, the trial court must consider the best interests of the child and cannot apply a bright-line test. “This means,” Hunstein wrote, quoting from Scott v. Scott, 276 Ga. 372, “that an initial custodial award will not always control after any ‘new and material change in circumstances that affects the child’ is considered.” In the Scott case, the court disapproved of automatically wresting a child from the custodial home “without benefit of judicial scrutiny into the child’s best interests,” Hunstein summarized. In the Bodne decision, Hunstein emphasized, “This analysis forbids the presumption that a relocating custodial parent will always lose custody and, conversely, forbids any presumption in favor of relocation.” In Bodne, the majority ruled that the doctor’s decision to move “and place his interests first affected Ms. Bodne’s ability to continue her equal involvement in the children’s lives and also had a direct negative effect on the children.” Witnesses at the trial court, including the children’s pediatrician, minister and family friends, testified that the move to Alabama would have a “direct negative effect” on the kids, the decision said. So the high court has “expressly overruled” any prior case law that “presumes the custodial parent has a prima facie right to retain custody” in relocation cases, wrote Hunstein. She concluded that the trial court was correct in considering the “myriad of factors that had a[n] impact on the children.” DISSENTERS PREDICT MORE LITIGATION The dissenters were shocked that the majority would overturn years of Georgia case law. “The opinion of the majority in this case abandons clear and workable guidelines for resolving conflicts regarding the custody of children, substituting a vague and undefined overarching principle for specific and objective rules of law which have been a useful part of this state’s jurisprudence for many years,” Benham wrote. “The effect of this change in the law will be increased litigation, uncertainty in the area of domestic law, increased cost for the parties attendant to the expansion of litigation, unnecessarily contentious custody proceedings and inconsistency from circuit to circuit, court to court and judge to judge.” He called the new law amorphous, saying it puts the courts in jeopardy of uprooting children at “every dissatisfaction” of a noncustodial parent with the parenting of the custodial parent. The trial courts will be offered no guidance from the laws that have historically governed the state, Benham warned. He said the majority’s opinion is particularly disturbing because parental relocation is so “commonplace in American life.” Benham added, “In an increasingly mobile society with a divorce rate of 50 percent, many jurisdictions in this country have dealt with the issues arising from a custodial parent’s need or desire to move away from the location of the former marital residence to change jobs or to start a new family.” Case law favors the custodial parent’s right to move away from the state with their child, Benham wrote, citing an Oklahoma case, Kaiser v. Kaiser, 23 P3d 278. Benham also said the majority opinion didn’t reveal the “breadth of the change the Georgia law will produce.” He cited at least 12 cases Bodne is overturning. He also took “issue with the majority opinion’s attempt to cast Dr. Bodne as a villain because his motivation for relocation included a desire to enhance his economic opportunity.” HOPE FOR THE FAMILY Presiding Justice Leah Ward Sears wrote a concurring opinion, responding to Benham’s dissent. In her opinion, Sears expressed optimism that broken families can be put back together. In Benham’s dissent, he quoted a New York opinion that said, “Like Humpty Dumpty, a family, once broken by divorce, cannot be put back together in precisely the same way.” Tropea v. Tropea, 665 NE2d 145. Sears said she believes “a child’s family, though altered by divorce, has the potential to coalesce and meld into a viable ‘binuclear family’ and to act together to further the best interests of the child.” All the ties the child has, to both families and the child’s school and friends, make up the complex equation that must be considered in relocation cases, Sears wrote. Kessler, the family law practitioner, said the net result of the majority’s decision is that divorced parents will be forced to communicate better about moving. “It will make it harder for a parent to move without having thought it through and trying to work it out with the other side,” Kessler said. He also said the decision is good for families. “Any time parents cooperate instead of litigate is better for family,” Kessler said. He didn’t see the decision being particularly biased toward mothers or fathers. Instead, he said, the decision will “even the playing field.” “It boggles my mind how the Legislature or the courts can say that when a custodial parent moves to another state, that doesn’t constitute a change in conditions that materially effects the welfare of the minor children,” Kessler said. “It doesn’t make sense,” he added, “When a family moves out of state, a child automatically changes schools, churches, neighbors, friends and [non-nuclear] family. Not to say that those are reasons to change custody, but those are reasons to open the doors of inquiry.”

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