Nakeshia M. Pritchett and Timothy R. Merritt, through never married, are the parents of three minor children. Merritt filed a petition to legitimate the three children. The mother answered, requested that the petition be denied, and counterclaimed to terminate Merritt’s parental rights. Following a hearing, the trial court entered a final judgment granting the petition to legitimate, awarding child support, granting visitation to Merritt, and dismissing Pritchett’s counterclaim to terminate Merritt’s parental rights for lack of subject matter jurisdiction. Pritchett appeals from this order pursuant to our grant of a discretionary appeal. For the reasons set forth below, we affirm in part and reverse in part. 1. Pritchett alleges that the trial court erred in granting visitation to Merritt. Under the facts of this case, we agree. In Kennedy v. Adams , 218 Ga. App. 120, 121 1 460 SE2d 540 1995 physical precedent only, we held that the grant of visitation privileges to the noncustodial father was tantamount to a modification of the mother’s custody. By modifying the visitation schedule, the trial court indirectly effected a change in custody. Id at 123. The Supreme Court reasoned similarly in Atkins v. Zachary , 243 Ga. 453-454 254 SE 2d 837 1979, that ‘when one party is granted an increase in visitation rights, the other party’s custodial rights are necessarily affected. They are, in fact, diminished.’ The Supreme Court addressed this issue again in Pruitt v. Lindsey , 261 Ga. 540 407 SE 2d 750 1991. Peterson v. Tyson , 253 Ga. App. 431, 432-433 559 SE2d 431 2002.
Custody issues may be adjudicated in a legitimation proceeding only with the consent of the parties. See Id. at 432; Palmer v. Pinkston , 228 Ga. App. 514, 515 2 492 SE2d 285 1997; Gregg v. Barnes , 203 Ga. App. 549, 551 1 417 SE2d 206 1992. There was no such consent in this case. Merritt did not seek visitation or custody in his petition. Further, the mother’s answer and counterclaim did not raise the issue of custody or visitation. The mother vigorously opposed Merritt’s efforts to legitimate the children and sought to terminate his parental rights stating that he had rarely paid child support; that he had failed to be involved with the children; and that her husband was acting as father to the children and desired to adopt them if Merritt’s parental rights were terminated. “In the absence of the mother’s consent, if the father wishes to petition for a change in physical custody, he must do so in a separate proceeding after the judgment of legitimation is entered. Cits.” Peterson v. Tyson , supra at 432. Accordingly, we reverse that portion of the trial court’s judgment awarding Merritt visitation with the children.
