Mercier, Judge.We granted Stefanie Borgers’s application for discretionary appeal in order to determine whether the trial court erred by (1) modifying custody in a post-divorce contempt proceeding when no motion to modify custody was made, and (2) ordering her to cease home-schooling one of her children and to enroll the child in school. For the reasons that follow, we reverse. The record shows that Stefanie Borgers (the “mother”) and Brian Borgers (the “father”) divorced in 2013.[1] The final divorce decree (the “divorce decree”) awarded the parties joint legal custody of their three minor children, but awarded the mother primary physical custody and final decision-making authority regarding the children. In the divorce decree, the court “expressed concern as to whether home-schooling is in the best interests of these children[,]” but did not prohibit the mother from continuing to home-school the children.On February 10, 2016, the father filed a “Petition for Contempt and Modification of Custody” (the “first contempt petition”), which requested that the trial court hold the mother in contempt for failing to abide by the court-ordered visitation schedule and parenting plan; compel her to refrain from alienating the children from the father and to comply with visitation requirements; modify the father’s child support obligation to reflect his then-current earnings; and award attorney fees to the father. In the first contempt petition, the father noted: “This Honorable Court, in its [divorce decree], expressed concern as to whether home-schooling the minor children was in their best interest; despite the Court’s concern, the Mother continues to home-school the minor children.” However, despite its title, the first contempt petition did not request a change in child custody. On April 27, 2016, the trial court held a temporary hearing “regarding child support only.” This hearing apparently was not transcribed. The trial court thereafter entered a temporary order modifying the father’s child support obligation and stating “[a]ll other issues not herein amended shall remain in full force and effect.”Although the court’s temporary order only addressed child support and specifically noted that the temporary hearing addressed “child support only,” on September 2, 2016, the father filed a Petition For Contempt of the Court’s Temporary Order (the “second contempt petition”), contending that the mother interfered with court-ordered counseling and was in contempt of the parenting plan. In the second contempt petition, the father sought, among other things, to have the mother held in contempt and incarcerated. The second contempt petition did not mention home-schooling or request a modification of custody. Following a hearing that apparently was not transcribed, the trial court issued on June 1, 2017 a “Final Order Regarding Contempt Order and Modification” resolving both contempt petitions. The court found the mother in contempt of the court-ordered parenting plan and sentenced her to serve ten days in jail, which sentence was suspended at the father’s request, subject to other conditions set forth in the order. The court also set forth a visitation schedule, awarded attorney fees to the father, and set the case for an August 2017 status hearing. The order specifically stated that “[a]ll other issues not herein amended shall remain the same as previously adjudicated[.]” With regard to home-schooling, the court stated,The Court finds it to be a shame that the Defendant Mother has not taught her children to be independent; the [c]ourt makes the findings based on the expert witness testifying that the children have issues in small classes as they have been previously home schooled by the Mother. The [c]ourt has informed the Mother as it was not requested she will not change custody[.]On August 16, 2017, the trial court held a status hearing that apparently was not transcribed. Following the hearing, the court entered a “Compliance Order” on August 29, 2017, finding that “all parties ha[d] complied with the [c]ourt’s previous final order.” However, the Compliance Order also stated the following: The [c]ourt also heard argument concerning the parties’ youngest child’s schooling. The [mother], through her counsel, presented to the [c]ourt that since the previous hearing the parties’ youngest child was taken out of Montessori School and at the time of the hearing was being home schooled. The [c]ourt, based on the previous recommendations provided by Dr. Patricia Wright at the May[] 2017 hearing and the [c]ourt’s own beliefs as to the child’s best interest hereby orders the [mother] to immediately enroll the child in school and ensure the child is not “home schooled” for the purposes of the child’s education. The [c]ourt finds that the child’s enrollment and attendance at the Montessori School should be convenient for the child and Mother as the Mother is actively employed with the Montessori School and the child would benefit from the wonderful educational opportunity at the Montessori School.1. The mother argues on appeal that because the final divorce decree made her the primary physical custodian and final decision-maker regarding the children, which included the authority to make decisions regarding the children’s education, the trial court’s order that she enroll the parties’ youngest child in school, rather than allowing her to home-school the child, constitutes an improper modification of custody in this contempt action.“In a contempt proceeding, as here, the trial court has authority to interpret the meaning of a divorce decree. In such action, the trial court does not have authority to modify a final judgment and divorce decree.” McCall v. McCall, 246 Ga. App. 770, 772 (1) (542 SE2d 168) (2000) (footnote omitted). Thus, we first must determine whether the order at issue here modified the parties’ divorce decree. If so, we must determine whether the court erred in modifying the divorce decree. (a) While there do not appear to be any cases specifically holding that an order directing a child’s final decision-maker to educate the child in a particular manner constitutes a modification of the final divorce decree, it is clear that “[w]here a child goes to school is a parental decision,” Daniel v. Daniel, 250 Ga. App. 482, 485 (2) (552 SE2d 479) (2001), and this Court has previously issued a few rulings tangentially relating to this issue. For example, in McCall, 246 Ga. App. at 771, the mother was granted sole custody of the children, and the father filed a motion for contempt, arguing, in part, that the mother had failed and refused to facilitate his receipt of information about the children’s school work. The trial court granted the father, among other things, direct access to schools, health care providers, tutors, or therapists to obtain any information, reports, or records that he desired. Id. at 771-772. We agreed with the mother that by extending to the father rights reserved to her in the final divorce decree as the sole legal custodian of the children, the trial court “transformed the final judgment” and effectively granted a change in custody equivalent to “joint legal custody,” which it was not authorized to do in a contempt proceeding. Id. at 773-774 (2). In addition, this Court has not questioned whether actions appealed regarding a change in a child’s education were properly brought as custody actions. For instance, in Daniel, 250 Ga. App. at 483, the parties were awarded joint legal custody of their minor child and the agreement contained no “tie breaking” provision. Following the divorce, the Daniels began to disagree regarding their child’s education: the mother wanted to home-school the child, and the father wanted the child to attend public school. Id. The mother filed a petition for a change of custody, requesting that she be designated the primary decision-maker with regard to the child’s education, religious training, and health care issues, and the father counterclaimed, requesting that the trial court make him primary decision-maker regarding his child’s education. Id. This Court noted, “the modification of custody requested by the Daniels in this case requires a finding of a material change of condition[,]” Id. at 483 (2), thus implying that a change regarding which parent has primary decisionmaking authority over education is a change in custody. Similarly, in Fox v. Korucu, 315 Ga. App. 851, 854-855 (729 SE2d 16) (2012), an appeal of a ruling in a custody modification action, this Court held that a disagreement regarding a child’s education may constitute a material change in circumstances sufficient to justify a custody modification if there is evidence of a material change in circumstances that adversely affects the child. In Odum v. Russell, 342 Ga. App. 390 (802 SE2d 829) (2017), another appeal of an order in a custody modification action, the trial court modified several parenting provisions of the original divorce decree, including changing the final decisionmaking authority about education from the father to the mother. We held that “the trial court was not authorized to modify the original custody order by altering parental custody arrangements, which included arrangements over which parent would have final authority over certain decisions relating to the child” because the trial court had expressly found that there had been no material change in circumstances. Id. at 393 (1). Likewise, in Terry v. Garibaldi, 274 Ga. App. 405 (618 SE2d 6) (2005), the mother sought a change of custody based in part on the parents’ inability to make a decision regarding whether their child should attend public or private school. Id. at 405-406. The trial court found that the mother showed a material change in condition based on the parents’ differing views regarding the appropriate educational setting, but we reversed after finding that an educational dispute typically is not a material change in condition that will justify a change of custody, and, further, the court’s order did not indicate that a change in condition had an adverse effect on the child. Id. at 408-409 (2). In the case before us, the divorce decree awarded the mother primary physical custody and final decision-making authority regarding the children, and the mother decided to home-school the youngest child. However, the father and the trial court disagreed with this decision, and in the father’s contempt action, the trial court ordered the mother to enroll the child in private school rather than allowing the mother to continue to home-school the child. The educational issue in this case, as in the cases above, is a custody issue. Whether the trial court effectively granted the father the right to make decisions regarding the child’s education or took it upon itself to make this particular decision, the result is the same: the final decision-maker regarding the children lost her right to make the final decision about the youngest child’s education. Thus, the order appealed from effectively modified the divorce decree’s custody provision.(b) Finding that the trial court’s order modified custody, we must next determine whether the trial court was authorized to modify custody in this contempt action. The argument asserted presents a question of law, and we owe no deference to the trial court’s ruling. Hammonds v. Parks, 319 Ga. App. 792, 794 (3) (735 SE2d 801) (2012).We agree with the mother that the court exceeded its authority by entering an order modifying the respective legal rights of the parents in a contempt proceeding. To obtain a change of custody, the non-custodial parent must file a new action for that specific purpose. See OCGA § 19-9-23 (a); McCall, supra at 772 (1) (a contempt proceeding and a change of custody proceeding must be instituted as two separate actions). In this case, the record is devoid of any evidence showing that the father filed a valid custody modification action. The father’s first contempt petition was entitled “Petition for Contempt and Modification of Custody,” but at no point did he seek a change of custody, nor did he file a separate modification action. In addition, the father has not asserted in an appellate brief or otherwise demonstrated that the mother waived her right to assert the impropriety of the inclusion of a change-in-custody request in a contempt proceeding. Given that a separate and independent action to modify custody was not filed as required by OCGA § 19-9-23 (a), and the father has not demonstrated that the mother waived her rights under OCGA § 19-9-23, the trial court lacked authority to modify the divorce decree in this contempt action.2. In light of our holding in Division 1, we need not address the mother’s contention that the trial court abused its discretion by ordering her to cease home-schooling the child, when home-schooling “is an accepted, legal form of education in the State of Georgia.”Judgment reversed. Doyle, P. J., concurs. Dillard, C. J., concurs fully and specially. A18A0910. BORGERS v. BORGERS.Dillard, Chief Judge, concurring fully and specially. The liberty interest of parents to direct the upbringing, education, and care of their children is the most ancient of the fundamental rights we hold as a people,1 and is “deeply embedded in our law.”2 This cherished right derives from the natural order,3 preexists government, and may not be interfered with by the State except in the most compelling circumstances. And while I agree with the majority that the trial court lacked the authority to alter the parties’ custody agreement in this contempt action, I write separately to express my serious concerns with the court’s decision to summarily substitute its judgment regarding the child’s education for the mother’s without identifying evidence of the compelling circumstances necessary to interfere with her constitutional parental rights. In doing so, the trial court failed to give sufficient consideration to the federal and Georgia constitutions, both of which afford significant protection of a parent’s right to the care, custody, and control of his or her child—which undoubtedly includes the right to make educational decisions. Our trial courts must be mindful in every case involving parental rights that, regardless of any perceived authority given to them by a state statute to interfere with a natural parent’s custodial relationship with his or her child, such authority is only authorized if it comports with the long-standing, fundamental principle that “[p]arents have a constitutional right under the United States and Georgia Constitutions to the care and custody of their children.”4 In this respect, the Supreme Court of the United States has acknowledged that “[t]he liberty interest . . . of parents in the care, custody, and control of their children—is perhaps the oldest of the fundamental liberty interests . . . .”5 And while a parent’s right to raise his or her children without state interference is largely expressed as a “liberty” interest, the Supreme Court of the United States has also noted that this right derives from “privacy rights” inherent in the text, structure, and history of the federal constitution.6 In Georgia, a parent’s natural right to familial relations is also recognized “under our state constitutional protections of liberty and privacy rights.”7 Indeed, Georgia courts have repeatedly recognized that “the constitutional right to raise one’s children is a fiercely guarded right in our society and law, and a right that should be infringed upon only under the most compelling circumstances.”8 In fact, according to our Supreme Court, “there can scarcely be imagined a more fundamental and fiercely guarded right than the right of a natural parent to [his or her] offspring.”9 And the fundamental liberty interest of natural parents in “the care, custody, and management of their child does not evaporate simply because they have not been model parents. . . .”10 To be sure, parental rights are not absolute. But when this fundamental liberty interest is at stake, the court must “give full, fair, and thoughtful consideration to the serious matter at hand.”11 Suffice it to say, a parent’s right to the care, custody, and control of one’s child includes a constitutionally protected right to make decisions regarding the child’s education—including the choice to homeschool.12 Indeed, in addition to the Supreme Court of the United States’s landmark decisions in Meyer, Pierce, and Yoder,13 the fundamental right of a parent to homeschool his or her child is also supported by Washington v. Glucksberg,14 which held that the federal Constitution “specially protects those fundamental rights and liberties which are, objectively, deeply rooted in this Nation’s history and tradition.”15 As one legal scholar has observed, homeschooling was “not only legal at the very early stages of our ‘history and tradition,’ but was also the predominate form of education.”16 A parent’s fundamental right to homeschool his or her children was also, significantly, “recognized and unchallenged when the Constitution was drafted and when the Fourteenth Amendment was passed.”17 And while the Supreme Court of Georgia has yet to explicitly declare that a parent’s right to care, custody, and control of his or her children includes the right to homeschool them, it is difficult to see how the Court’s reasoning in Patten v. Ardis—which is steeped in this state’s constitutional and jurisprudential history18—would not apply with equal force and extend to such a fundamental parental duty.19 There is little question, then, that parents have a fundamental right under the United States and Georgia Constitutions to homeschool their children. Nevertheless, here, in addition to disregarding the plain terms of the current custody agreement, the trial court appears to have given little, if any, consideration of the mother’s constitutionally protected liberty interest in deciding to homeschool her child. Indeed, without even referencing the significant liberty interests at stake, the court questioned and undermined the mother’s choices regarding her child’s education, ordering her to enroll the child in the Montessori school to “ensure the child is not ‘homeschooled’” based on its “own beliefs as to the child’s best interest[.]“20 And while the trial court may be right that it would be more “convenient” for the child to attend the Montessori school because the mother works there, a parent’s constitutional right to make educational choices for his or her child is not limited to those a judge (or any other state actor) deems to be convenient or wise. Thus, even if the trial court had been authorized to modify the parents’ custody agreement (which it was not), it did not reference any evidence of the compelling circumstances necessary to substitute its own preferences as to the child’s education for the mother’s decision to homeschool her child.21 And when state actors engage in this sort of Orwellian policymaking disguised as judging, is it any wonder that so many citizens feel as if the government does not speak for them or respect the private realm of family life. In sum, I take this opportunity, yet again,22 to remind our trial courts that, in making any decision or taking any action that interferes with a parent-child relationship, our state statutes are subordinate to and must be construed in light of the fundamental rights recognized by the federal and Georgia constitutions—which both include a parent’s fundamental right to homeschool a child. As this Court has rightly recognized, “[t]he constitutional right of familial relations is not provided by government; it preexists government.”23 Indeed, this “cherished and sacrosanct right is not a gift from the sovereign; it is our natural birthright. Fixed. Innate. Unalienable.”24 Thus, regardless of a court’s personal feelings or perception of a parent’s fitness to care for or retain custody of his or her child, careful consideration of these bedrock constitutional principles and safeguards must remain central to each case without exception. And when this fails to occur, we will not hesitate to remind our trial courts of the solemn obligation they have to safeguard the parental rights of all Georgians.
