We granted Regina Scott’s application for discretionary appeal to address whether a self-executing change of custody provision in the Scotts’ divorce decree was permissible under Weaver v. Weaver , 260 Ga. 493 396 SE2d 890 1990 and Pearce v. Pearce , 244 Ga. 69 257 SE2d 904 1979. For the reasons that follow, we find that the automatic custody change provision was not a permissible extension of Weaver and Pearce and should be stricken from the parties’ divorce decree. Regina and Charles Scott were divorced in 2001. Custody of their two-year-old daughter was placed jointly in the parties with Ms. Scott given primary physical custody. The divorce decree further provided in Paragraph 3 that in the event that Ms. Scott moves to a residence outside of Cobb County, Georgia, it is hereby ordered and the court specifically finds, that this event constitutes a material change in circumstances detrimentally affecting the welfare of the minor child and that pursuant to Carr v. Carr , 207 Ga. App. 611 429 SE2d 95 1993, primary physical custody of the minor child shall automatically revert to Mr. Scott. This provision is a self-effectuating change of custody provision and no action of the Court shall be necessary to accomplish this change of custody. The best interests of the child are controlling as to custody changes. OCGA § 19-9-3 a 2; Parr v. Parr , 196 Ga. 805 27 SE2d 687 1943. Whether particular circumstances warrant a change in custody is a fact question determined under the unique situation in each individual case. Wilson v. Wilson , 241 Ga. 305 245 SE2d 279 1978. In contemplating a custodial change, the trial court must exercise its discretion to determine whether a change is in the best interests of the child. OCGA § 19-9-3. The circumstances warranting a change in custody are not confined to those of the custodial parent: any new and material change in circumstances that affects the child must also be considered. Handley v. Handley , 204 Ga. 57, 59 48 SE2d 827 1948. The law thus recognizes that because children are not immutable objects but living beings who mature and develop in unforeseeable directions, the initial award of custody may not always remain the selection that promotes the best interests of the child.
Self-executing change of custody provisions allow for an “automatic” change in custody based on a future event without any additional judicial scrutiny. Our appellate courts have upheld several such automatic custody change provisions. In Weaver , supra, the parties contemplated that an older child, upon reaching the age of 14, might utilize the statutory procedures allowing a child of that age to chose the parent with whom the child wishes to reside. See OCGA § § 19-9-1 a 3 A, 19-9-3 a 4. Accord Pearce , supra under terms of agreement, “each of the children shall be given the opportunity to decide” the parent with whom the child preferred to reside1 . The self-executing change of custody provisions in those two cases thus provided that upon the child deciding to reside with the non-custodial parent, the obligations of the parents would switch automatically without further court intervention. The self-executing change of custody provisions in Weaver and Pearce were thus consonant with statutory and case law, which recognizes that “a child’s selection of the parent with whom he desires to live, where the child has reached 14 years of age, is controlling absent a finding that such parent is unfit. Without a finding of unfitness the child’s selection must be recognized and the court has no discretion to act otherwise. Cits.” Harbin v. Harbin , 238 Ga. 109-110 230 SE2d 889 1976.
