The marriage of appellant Roy Johnson “Father” and appellee Ping Hu Johnson “Mother” ended with the entry of a judgment and decree of divorce in December 2010. The issue before this Court is whether the judgment contains an improper self-executing modification that is contingent upon a determination to be made by a person other than a judge. The judgment of divorce incorporated by reference a parenting plan and custody order that gave Mother primary physical custody of the parties’ 12-year-old daughter, with Father awarded visitation that required supervision when the child spent the night in Father’s custody. The parenting plan provided that the 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.” The plan also stated that the therapist “shall have the authority to determine how supervised visitation should be phased out over time and when supervision may end.” Father filed a motion for new trial in which he contended that the provisions concerning the termination of the supervised visitation constituted an improper self-executing modification contingent upon the determination of the therapist. The trial court denied the motion, finding that the self-executing provision was not a material change in custody and was in the child’s best interests. Acting pursuant to this Court’s Pilot Project, by which we granted all non-frivolous applications for discretionary review of a final judgment and decree of divorce, we granted Father’s application for discretionary review.1
Visitation rights are part of custody OCGA § 19-9-221, and the provision at issue is a self-executing change of visitation since it allows for an automatic change in Father’s visitation with his child, from supervised to unsupervised, based on a future event the determination of the therapist without any additional judicial scrutiny. See Scott v. Scott , 276 Ga. 372, 373 578 SE2d 876 2003. A self-executing change of custody/visitation is acceptable as long as it “poses no conflict with our law’s emphasis on the best interests of the child.” Id., at 374. However, a self-executing change in custody/visitation that constitutes a material change, i.e., is one “that is allowable only upon a determination that it is in the best interests of the child at the time of the change” Dellinger v. Dellinger , 278 Ga. 732, 734 609 SE2d 331 2004, generally violates Georgia’s public policy founded on the best interests of the child. A requirement that a parent’s visitation be supervised is “a provision expressly meant for the child’s best welfare” Sigal v. Sigal , 289 Ga. 814, 817 716 SE2d 206 2011, and “it is the trial court’s responsibility to determine whether the evidence is such that a modification . . .of custody/visitation privileges is warranted, and the responsibility for making that decision cannot be delegated to another, no matter the degree of the delegatee’s expertise or familiarity with the case. While the expert’s opinion may serve as evidence supporting the trial court’s decision to modify . . . visitation, the decision must be made by the trial court, not the expert.” Wrightson v. Wrightson , 266 Ga. 493 3 467 SE2d 578 1996.
