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Bankston v. Warbington

The self-executing change-in-custody provision of the trial court's order was void because it violated Georgia's public policy in that it failed to provide for a determination of whether the custody change was in the child's best interest at the time the change would automatically occur.

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These companion appeals are the second and third arising from a custody dispute that went to trial in September 2012. In October 2012, the trial court issued an order modifying primary physical custody of the ten-year-old child at issue in favor of the father as of January 2013, but also including a self-executing provision that the mother would regain custody after 18 months in the summer of 2014. In November 2013, the trial court ruled on the mother’s post-trial motions and the father’s request for attorney fees. On appeal in Case No. A14A1514, the mother argues that the trial court abused its discretion when it modified custody in favor of the father. On cross-appeal in Case No. A14A1515, the father argues that the trial court erred when it ordered the self-executing change of custody in the summer of 2014, when it increased his child support obligation as of that time, and when it failed to rule on the father’s request for fees first made shortly after trial. We affirm the initial modification of custody as supported by the evidence, but we reverse those portions of the order implementing the self-executing return of custody and awarding child support to the mother. We also vacate the judgment as to fees and remand for further proceedings consistent with this opinion.

On appeal from a trial court’s determination in a custody dispute, we defer to that court in all matters of fact:

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