Appellee Wesley Pace Husband filed an action for divorce against appellant Amanda Pace Wife, seeking, inter alia, temporary and permanent custody of the parties’ minor child. After a temporary hearing, at which both parties testified, the trial court awarded physical custody of the child to Husband and legal custody to both parties jointly. Approximately one year later, a bench trial was held, at which Husband and Wife both testified and presented multiple witnesses. The trial court thereafter entered a final judgment and decree of divorce awarding permanent physical and legal custody of the minor child to Husband. Wife moved for a new trial, which was denied following a hearing, and we subsequently granted Wife’s application for discretionary appeal pursuant to this Court’s Family Law Pilot Project. See Wright v. Wright , 277 Ga. 133 587 SE2d 600 2003. Because the trial court, in making its final custody determination, relied on evidence adduced at the temporary hearing without notifying the parties of its intent to do so, we reverse and remand. As is apparent from both the final divorce decree and the order denying Wife’s motion for new trial, the trial court relied substantially on testimony adduced at the temporary hearing in making its determination on permanent custody. It is likewise clear from the record that the parties were not on notice that such testimony would be considered by the court in making its decision on permanent custody. In fact, the record reflects that, as of the date of the final hearing, the transcript from the temporary hearing held more than one year earlier had not even been filed, and the trial court thus relied on its “memory and notes” in reaching its custody decision. At issue is whether the court’s reliance on evidence from the temporary hearing, under these circumstances, was proper.
Neither the statutory provisions nor the court rules governing the conduct of child custody proceedings addresses the extent to which a trial court may rely on evidence from the temporary hearing in reaching its determination on permanent custody. Compare OCGA § 9-11-65 a 2 expressly addressing trial court’s consideration of evidence from interlocutory injunction hearing in its decision on permanent injunction. It is clear, however, that an award of temporary custody “differs in its nature and purpose from an award of permanent custody.” Foster v. Foster , 230 Ga. 658, 660 198 SE2d 881 1973. The temporary award is intended to create an interim arrangement that serves “the best interests of the child pending adjudication of the rights of the mother and father,” Adams v. State , 218 Ga. 130, 131 126 SE2d 624 1962, whereas an award of permanent custody constitutes “a final adjudication of the rights of the parties.” Id.
