O.C.G.A. § 19-8-43 (2019)

Annotations

Law reviews. For annual survey of law of domestic relations, see 38 Mercer L. Rev. 179 (1986). For annual survey of domestic relations, see 43 Mercer L. Rev. 243 (1991). For article, “Gender and Justice in the Courts: A Report to the Supreme Court of Georgia by the Commission on Gender Bias in the Judicial System,” see 8 Ga. St. U.L. Rev. 539 (1992).

Sec.

Execution of power of attorney; probate court responsibilities; revocation or execution of subsequent power of attorney. Authority of agent; revocation, termination, or resignation of agent exercising power of attorney; right of parent to access records while power of attorney in effect. Child’s status upon execution of power of attorney; delegation of authority must specify applicability. Delegation to grandparent; delegation by deployed parents. Continuing application of former provisions as applicable to grandparents. Power of attorney form.

For article, “Custody Disputes: The Case for Independent Lawyer-Mediators,” see 10 Ga. St. U.L. Rev. 487 (1994). For comment on the interstate child support enforcement system, see 46 Mercer L. Rev. 921 (1995). For annual survey article on domestic relations, see 50 Mercer L. Rev. 217 (1998).

RESEARCH REFERENCES Am. Jur. Proof of Facts. Denial of Child Visitation Rights, 2 POF2d 791. Change in Circumstances Justifying Modification of Child Custody Order, 6 POF2d 499. Change in Circumstances Justifying Modification of Child Visitation Rights, 15 POF2d 499. Child Custody Determination on Termination of Marriage, 34 POF2d 407. Proving Child Sexual Abuse in Custody or Visitation Dispute, 33 POF3d 303.

Custody and Visitation of Children by Gay and Lesbian Parents, 64 POF3d 403. Grandparent Visitation and Custody Awards, 69 POF3d 281. Am. Jur. Trials. - Child Custody Litigation, 22 Am. Jur. Trials 347. Relocation of Children by the Custodial Parent, 65 Am. Jur. Trials 127. ALR. Propriety of awarding joint custody of children, 17 A.L.R.4th 1013. Propriety of awarding custody of child

to parent residing or intending to reside in foreign country, 20 A.L.R.4th 677. Kidnapping or related offense by taking or removing of child by or under authority of parent or one in loco parentis, 20 A.L.R.4th 823. Standing of foster parent to seek termination of rights of foster child’s natural parents, 21 A.L.R.4th 535. Right of parent to regain custody of child after temporary conditional relinquishment of custody, 35 A.L.R.4th 61. Attorneys’ fee awards in parent-nonparent child custody cases, 45 A.L.R.4th 212. Right to jury trial in state court divorce proceedings, 56 A.L.R.4th 955. Parent’s transsexuality as factor in award of custody of children, visitation rights, or termination of parental rights, 59 A.L.R.4th 1170. Tort liability of public authority for failure to remove parentally abused or ne-

glected children from parents’ custody, 60 A.L.R.4th 942. Withholding visitation rights for failure to make alimony or support payments, 65 A.L.R.4th 1155. Child custody: separating children by custody awards to different parents - post-1975 cases, 67 A.L.R.4th 354. State court’s authority, in marital or child custody proceeding, to allocate federal income tax dependency exemption for child to noncustodial parent under § 152(e) of the Internal Revenue Code (26 USCS § 152(e)), 77 A.L.R.4th 786. Construction and effect of statutes mandating consideration of, or creating presumptions regarding, domestic violence in awarding custody of children, 51 A.L.R.5th 241. Visitation or Custody of Child Allegedly Conceived by Sexual Assault, 54 A.L.R.7th Art. 7.

ARTICLE 1 GENERAL PROVISIONS Cross references. Procedure for appeals from judgments or orders awarding or refusing to change child custody or holding or declining to hold persons in contempt of such child custody judgments or orders, § 5-6-35. Kidnapping of child under age 16 against will of child’s parents or other person having lawful custody, § 16-5-40.

Offense of interference with custody, § 16-5-45. Law reviews. For survey article on domestic relations, see 34 Mercer L. Rev. 113 (1982). For note on 1995 amendments and enactments of sections in this article, see 12 Ga. St. U.L. Rev. 96 (1995).

JUDICIAL DECISIONS Editor’s notes. - In light of the similarity of the statutory provisions, decisions under former Civil Code 1910, § 2931 and former Code 1933, § 50-121, as it read prior to 1981 recodification are included in the annotations for this article. For additional cases dealing with custody of children, see annotations under Code Section § 9-14-2, dealing with habeas corpus on account of detention of child, and Code Sections §§ 19-7-1 and

19-7-4 dealing with parental powers and loss of parental custody. Court where custodial parent resides has exclusive jurisdiction to change custody. - General rule is that court where parent with legal custody resides has exclusive right to award change of custody. This is true whether legal custodian lives in another state or in another county, and irrespective of physical presence of child. Matthews v. Matthews, 238 Ga. 201, 232 S.E.2d 76, 1977

Ga. LEXIS 962 (1977) (decided under former Code 1933, § 50-121). Acknowledged or established rights of parties. - In exercising discretion, judge shall not disregard or impair acknowledged or established rights of any party; to do so would constitute an abuse of discretion. Hill v. Rivers, 200 Ga. 354, 37 S.E.2d 386, 1946 Ga. LEXIS 411 (1946) (decided under former Code 1933, § 50121). When court’s discretion should favor party with legal interest. - While judge in awarding custody of child is vested with wide discretion, such discretion should be governed by rules of law, and when rivalry between parents for custody of child is not involved, discretion should be exercised in favor of the party having legal right, unless evidence shows that interest and welfare of the child justify the judge in awarding the child’s custody to another. Harter v. Davis, 199 Ga. 503, 34 S.E.2d 657, 1945 Ga. LEXIS 417 (1945) (decided under former Code 1933, § 50-121). Court’s discretion should be exercised in favor of party having legal right unless evidence shows that interest and welfare of child justify judge in awarding child’s custody to another. Harper v. Ballensinger, 121 Ga. App. 390, 174 S.E.2d 182, 1970 Ga. App. LEXIS 1233, aff’d in part and rev’d in part, 226 Ga. 828, 177 S.E.2d 693, 1970 Ga. LEXIS 704 (1970) (decided under former Code 1933, § 50-121). Between parents, best interests of child controls. - In all cases between parents for custody of minor children, law imposes upon trial judge duty to exercise sound discretion and to let welfare of child control judges award. The judge is empowered to award such custody to a nonresident for one month each year, and to resident parent for other 11 months; and whether judge requires bond of nonresident for return of child is a matter solely in the judges discretion. Pruitt v. Butterfield, 189 Ga. 593, 6 S.E.2d 786, 1940 Ga. LEXIS 338 (1940) (decided under former Code 1933, § 50-121). Standing of child’s sister to seek change of custody. - When there is none having legal right to custody save the father, it would be a travesty to hold

that none other, even a sister of the child, has standing to seek change of custody if it appears that welfare of child requires it. Harper v. Ballensinger, 121 Ga. App. 390, 174 S.E.2d 182, 1970 Ga. App. LEXIS 1233, aff’d in part and rev’d in part, 226 Ga. 828, 177 S.E.2d 693, 1970 Ga. LEXIS 704 (1970) (decided under former Code 1933, § 50-121). When trial court’s disposition will not be disturbed. - If evidence material to inquiry into change of circumstances is in conflict, disposition made by trial court will not be controlled by appellate courts. Bosson v. Bosson, 223 Ga. 793, 158 S.E.2d 231, 1967 Ga. LEXIS 699 (1967) (decided under former Code 1933, § 50-121). Material and proper showing of party’s unfitness. - It is usually material and proper for one party to show that other is unfit to have custody of child. Beck v. Beck, 134 Ga. 137, 67 S.E. 543, 1910 Ga. LEXIS 136 (1910); Crapps v. Smith, 9 Ga. App. 400, 71 S.E. 501, 1911 Ga. App. LEXIS 578 (1911) (decided under former Civil Code 1910, § 2931). “Changed circumstances.” - Change of circumstances that would render prior judgment inconclusive is not necessarily limited to change in moral or financial condition of parent to whom initial award was made, but includes any new and material change in circumstances of either parent or of children, which might substantially affect the health, happiness, or welfare of the children. Handley v. Handley, 204 Ga. 57, 48 S.E.2d 827, 1948 Ga. LEXIS 537 (1948); Robinson v. Ashmore, 232 Ga. 498, 207 S.E.2d 484, 1974 Ga. LEXIS 988 (1974), overruled in part, Durden v. Barron, 249 Ga. 686, 290 S.E.2d 923, 1982 Ga. LEXIS 822 (1982) (decided under former Code 1933, § 50-121). Change in capacity, ability, or fitness of either parent. - Capacity, ability, or fitness of party to whom child was awarded in previous proceeding may thereafter become entirely different. Status of both such parties and child may have changed. Change of circumstances may render a change necessary in order to promote the health, happiness, or welfare of the child. Handley v. Handley, 204 Ga. 57, 48 S.E.2d 827, 1948 Ga. LEXIS 537

(1948) (decided under former Code 1933, § 50-121). Parent may lose right to custody if found by clear and convincing evidence to be unfit. White v. Bryan, 236 Ga. 349, 223 S.E.2d 710, 1976 Ga. LEXIS 866 (1976) (decided under former Code 1933, § 50121). Mother’s extramarital affairs as ground for giving custody to grandparents. - When husband was overseas with armed forces and wife had been engaging in illicit relations with another man while the children were left without adult supervision, the judge was authorized to find that it was in the best interests of three and five-year-old children to be left in the custody of the paternal grandmother. Harter v. Davis, 199 Ga. 503, 34 S.E.2d 657, 1945 Ga. LEXIS 417 (1945) (decided under former Code 1933, § 50-121). Prisoner on parole is unfit for custody at that time. - While commission of crime might not absolutely forfeit father’s right to custody of infant for all time, being a prisoner on parole makes him a person unfit to care for his child. Yancey v. Watson, 217 Ga. 215, 121 S.E.2d 772, 1961 Ga. LEXIS 418 (1961) (decided under former Code 1933, § 50-121). Evidence of past homosexual conduct not basis for denying custody. - When there was no evidence that mother

was presently engaged in homosexual relationship but merely some evidence of past conduct, custody should not have been denied on basis of unfitness. Gay v. Gay, 149 Ga. App. 173, 253 S.E.2d 846, 1979 Ga. App. LEXIS 1774 (1979) (decided under former Code 1933, § 50-121). Out-of-state custody awards entitled to full faith and credit. - Judgment of court of competent jurisdiction of sister state, awarding custody of minor child, which is regular on judgment’s face and unimpeached for fraud, is entitled to full faith and credit in proceedings for custody of child in this state. Bowen v. Bowen, 223 Ga. 800, 158 S.E.2d 233, 1967 Ga. LEXIS 703 (1967), overruled, Crumbley v. Stewart, 238 Ga. 169, 231 S.E.2d 772, 1977 Ga. LEXIS 943 (1977) (decided under former Code 1933, § 50-121). Same considerations apply to modification of custody awards of other states. - Judgment of court of competent jurisdiction of sister state may be modified only when it appears that there has been such change in conditions since original decree as would authorize modification of similar judgment rendered by courts of this state. Bowen v. Bowen, 223 Ga. 800, 158 S.E.2d 233, 1967 Ga. LEXIS 703 (1967), overruled, Crumbley v. Stewart, 238 Ga. 169, 231 S.E.2d 772, 1977 Ga. LEXIS 943 (1977) (decided under former Code 1933, § 50-121).

RESEARCH REFERENCES ALR. Propriety of provision of custody or visitation order designed to insulate child from parent’s extramarital sexual relationships, 40 A.L.R.4th 812.

Parent’s or relative’s rights of visitation of adult against latter’s wishes, 40 A.L.R.4th 846.