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Upchurch v. Smith

Jurisdiction over the appellant's petition to modify child custody was in Cobb county, despite the mother's move to California with the children, since it was undisputed that the children resided in Cobb county for more than six months prior to the petition's filing and the Cobb county court had made a custody determination prior to the move.

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Appellant William Upchurch appeals from both a Fulton County order transferring his petition for modification of child custody to Cobb County and the Cobb County order denying his petition on the merits. Finding no error, we affirm. The record reveals that Upchurch and appellee Michele Smith were divorced in Fulton County in 1999. The final divorce decree awarded the parties joint legal and physical custody of their two minor children and named Upchurch as the primary physical custodian. Smith received primary physical custody of the children shortly thereafter by a consent agreement that was not incorporated into a Fulton County court order until 2002. By that time, Smith and the children had been residing in Cobb County for over six months. Accordingly, when Upchurch petitioned for change of custody in July 2002, he filed his modification action in Cobb County. After receiving testimony and argument of the parties, the Cobb trial court in February 2004 denied the modification action.

Smith and the children moved to California in August 2004. A month later, Upchurch filed the instant action in Fulton County to modify custody and child support. Smith answered, raising affirmative defenses of improper jurisdiction and venue. She thereafter moved to transfer the action to Cobb County because it was her county of residence prior to her move to California. The court granted the motion to transfer and denied Upchurch’s request for a certificate of immediate review. After a full hearing, the Cobb County court denied Upchurch’s petition to modify custody and support.

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