Power granted by section is one incident to divorce proceeding.

- Trial judge can exercise power regarding custody of children only when divorces are granted, or can only make disposition of minor children of marriage during period divorce proceeding is pending. When case is terminated without divorce being granted to either party, court cannot exercise this power. Brinson v. Jenkins, 207 Ga. 218, 60 S.E.2d 440 (1950).

Court could make final disposition of children only when divorce was granted. This power was incidental to divorce proceeding, and was exercisable only when valid divorce was granted between parties. Harmon v. Harmon, 209 Ga. 474, 74 S.E.2d 75 (1953); Griffis v. Griffis, 229 Ga. 587, 193 S.E.2d 620 (1972).

Section does not apply unless divorce granted.

- Court can make a final disposition of children only if divorce is granted. If case is terminated without divorce being granted to either party, court can exercise no such power. Keppel v. Keppel, 92 Ga. 506, 17 S.E. 976 (1893); Black v. Black, 165 Ga. 243, 140 S.E. 364 (1927).

Jurisdiction and venue.

- Although a trial court may modify, sua sponte, visitation under certain circumstances pursuant to O.C.G.A. §§ 19-9-1(b) and19-9-3(b), those provisions apply only when jurisdiction and venue are proper. Rogers v. Baudet, 215 Ga. App. 214, 449 S.E.2d 900 (1994).

When final award of custody ordinarily made.

- Final award of custody can ordinarily be made only after divorce has been granted. Brinson v. Jenkins, 207 Ga. 218, 60 S.E.2d 440 (1950).

In custody case, state as parens patriae is materially concerned, and through agency of court is virtually a party to judgment, although action proceeded nominally as one between parents only. Fortson v. Fortson, 195 Ga. 750, 25 S.E.2d 518 (1943), later appeal, 197 Ga. 699, 30 S.E.2d 165 (1944).

Meaning of words "party not in default".

- Words "party not in default" formerly in subsection (a) simply meant that in absence of proof of circumstances showing children's welfare will be better served by awarding custody to another party, judge must under this mandate of the law award custody to such party. But further provisions of that section plainly empowered judge in exercise of sound discretion to place children where in the judge's judgment based upon evidence, their best interest will be served, although this might deny custody to parent not in default in divorce case. Gunnells v. Gunnells, 225 Ga. 188, 167 S.E.2d 138 (1969).

O.C.G.A.

§§ 19-9-1 and19-9-3 construed together in child custody decisions. - Courts have construed former Code 1933, §§ 30-127 and 74-107 (see now O.C.G.A. §§ 19-9-1 and19-9-3) together in decisions involving child custody in divorce actions, and have recognized right of trial judge to exercise sound legal discretion, looking to best interest of child or children, in awarding custody of children. Brown v. Brown, 222 Ga. 446, 150 S.E.2d 615 (1966).

Former Code 1933, §§ 30-127 and 30-206 (see now O.C.G.A. §§ 19-9-1 and19-6-14), being in pari materia, must be construed together. Zachry v. Zachry, 140 Ga. 479, 79 S.E. 115 (1913).

Father's failure to file competing parenting plan.

- Although a father failed to file a competing parenting plan in the mother's proceeding to modify their current plan, that did not compel adoption of the mother's plan. Gilchrist v. Gilchrist, 323 Ga. App. 555, 747 S.E.2d 75 (2013).

Terms of original parenting plan not modified remain in effect.

- Contrary to the husband's argument, the trial court's ruling did contain a parenting plan as the trial court's order explicitly stated that all the terms and conditions of the original parenting plan not modified would remain in full force and effect unless it conflicted with the trial court's order. Williams v. Williams, 295 Ga. 113, 757 S.E.2d 859 (2014).

Cited in Williams v. Crosby, 118 Ga. 296, 45 S.E. 282 (1903); Milner v. Gatlin, 143 Ga. 816, 85 S.E. 1045, 1916B L.R.A. 977 (1915); Scott v. Scott, 154 Ga. 659, 115 S.E. 2 (1922); Dalton v. Dalton, 170 Ga. 502, 153 S.E. 22 (1930); Slate v. Coggins, 181 Ga. 17, 181 S.E. 145 (1935); Duke v. Duke, 181 Ga. 21, 181 S.E. 161 (1935); Chapin v. Cummings, 191 Ga. 408, 12 S.E.2d 312 (1940); Loggins v. Loggins, 191 Ga. 779, 14 S.E.2d 91 (1941); Barbee v. Barbee, 201 Ga. 763, 41 S.E.2d 126 (1947); Hodges v. Hodges, 77 Ga. App. 86, 47 S.E.2d 823 (1948); Gibson v. Wood, 207 Ga. 282, 61 S.E.2d 125 (1950); McBurnett v. Warren, 208 Ga. 225, 66 S.E.2d 49 (1951); Hammock v. Hammock, 209 Ga. 751, 76 S.E.2d 15 (1953); Rowell v. Rowell, 212 Ga. 584, 94 S.E.2d 425 (1956); Perry v. Perry, 213 Ga. 847, 102 S.E.2d 534 (1958); Hunnicutt v. Hunnicutt, 214 Ga. 834, 108 S.E.2d 279 (1959); Bartlett v. Bartlett, 99 Ga. App. 770, 109 S.E.2d 821 (1959); Perkins v. Courson, 219 Ga. 611, 135 S.E.2d 388 (1964); Minchew v. Minchew, 222 Ga. 593, 151 S.E.2d 144 (1966); Rigdon v. Rigdon, 222 Ga. 679, 151 S.E.2d 712 (1966); Burney v. Burney, 222 Ga. 790, 152 S.E.2d 871 (1966); Rogers v. Smith, 222 Ga. 841, 152 S.E.2d 859 (1967); Floyd v. Floyd, 223 Ga. 275, 154 S.E.2d 580 (1967); Waller v. Waller, 226 Ga. 279, 174 S.E.2d 433 (1970); Gray v. Gray, 226 Ga. 767, 177 S.E.2d 575 (1970); Short v. Short, 230 Ga. 131, 196 S.E.2d 127 (1973); Peacock v. Adams, 230 Ga. 774, 199 S.E.2d 254 (1973); Shaddrix v. Womack, 231 Ga. 628, 203 S.E.2d 225 (1974); Ward v. Ward, 232 Ga. 189, 205 S.E.2d 852 (1974); Spence v. Levi, 133 Ga. App. 581, 211 S.E.2d 622 (1974); Marshall v. Marshall, 234 Ga. 393, 216 S.E.2d 117 (1975); Vaughan v. Vaughan, 236 Ga. 173, 223 S.E.2d 148 (1976); Anderson v. Anderson, 237 Ga. 886, 230 S.E.2d 272 (1976); Nipper v. Rich, 241 Ga. 123, 244 S.E.2d 237 (1978); Sweeney v. Sweeney, 241 Ga. 372, 245 S.E.2d 648 (1978); Munday v. Munday, 243 Ga. 863, 257 S.E.2d 282 (1979); Stephens v. Stephens, 244 Ga. 467, 260 S.E.2d 864 (1979); Lawrence v. Day, 247 Ga. 474, 277 S.E.2d 35 (1981); Kennedy v. Adams, 218 Ga. App. 120, 460 S.E.2d 540 (1995); Lewis v. Lewis, 252 Ga. App. 539, 557 S.E.2d 40 (2001); Midkiff v. Midkiff, 275 Ga. 136, 562 S.E.2d 177 (2002); Hammond v. Gordon County, 316 F. Supp. 2d 1262 (N.D. Ga. 2002); Carr-MacArthur v. Carr, 296 Ga. 30, 764 S.E.2d 840 (2014).

Trial court has wide latitude and discretion regarding child's best interests.

- Judge has wide latitude and discretion regarding children's best interest, welfare, and happiness. This discretion will be interfered with only in those cases when abuse is shown. Barnes v. Tant, 217 Ga. 67, 121 S.E.2d 125 (1961).

When custody of minor children is involved, the trial court has wide latitude and discretion so that best interests of children may be provided for, and this discretion will not be interfered with unless manifestly abused. Yde v. Yde, 231 Ga. 506, 202 S.E.2d 423 (1973).

Judicial discretion to make temporary custody award.

- Pending divorce proceeding, judge in exercise of sound discretion may temporarily award custody of children. Cason v. Cason, 158 Ga. 395, 123 S.E. 713 (1924).

Award of custody not disturbed absent abuse of discretion.

- In cases between parties involving custody of their minor children, rule is established that judge exercises sound legal discretion, looking to the best interest of the child or children, and that this court does not interfere with the judge's judgment unless that discretion appears to have been abused. Willingham v. Willingham, 192 Ga. 405, 15 S.E.2d 514 (1941); Adams v. Heffernan, 217 Ga. 404, 122 S.E.2d 735 (1961).

When a trial judge in awarding custody of a minor child as between divorced parents, exercises sound legal discretion, the judge's judgment in making an award will not be controlled by the Supreme Court. Bignon v. Bignon, 202 Ga. 141, 42 S.E.2d 426 (1947); Murphy v. Murphy, 238 Ga. 130, 231 S.E.2d 743 (1977).

Supreme Court will not interfere with the trial judge's award of custody unless an abuse of discretion appears. Lynn v. Lynn, 202 Ga. 776, 44 S.E.2d 769 (1947); Brannen v. Brannen, 208 Ga. 88, 65 S.E.2d 161 (1951); Harbuck v. Harbuck, 210 Ga. 220, 78 S.E.2d 508 (1953); Jackson v. Jackson, 230 Ga. 499, 197 S.E.2d 705 (1973).

When the trial judge exercises sound legal discretion looking to the best interests of the child in determining the custody, the Supreme Court will not interfere with the judge's judgment unless it is shown that the judge's discretion was abused. Harris v. Harris, 240 Ga. 276, 240 S.E.2d 30 (1977).

In deciding issues of custody, the court is granted the power to exercise the court's sound discretion in making an award to either party. When the trial judge exercises sound legal discretion looking to the best interests of the child, the appellate court will not interfere with the judge's judgment unless it is shown that the judge's discretion was abused. Sullivan v. Sullivan, 241 Ga. 7, 243 S.E.2d 35 (1978).

Award not disturbed.

- Award of temporary alimony, attorney's fees, and child custody not disturbed absent abuse of discretion. Moody v. Moody, 193 Ga. 699, 19 S.E.2d 504 (1942).

Judicial discretion generally not subject to review.

- Absent exception to decree, discretion of judge in awarding custody is not subject to review. Johnson v. Johnson, 131 Ga. 606, 62 S.E. 1044 (1908).

When evidence conflicts regarding willful violation of custody, discretion of trial court will not be disturbed. Shook v. Shook, 242 Ga. 55, 247 S.E.2d 855 (1978).

If any evidence supports custody award, it will not be disturbed.

- On appeal in child custody award pursuant to divorce decree, the appellate court will not reverse the trial court on ground of abuse of discretion if there is any evidence to support child custody award. Gazaway v. Brackett, 241 Ga. 127, 244 S.E.2d 238 (1978).

Evidence requiring reversal of trial court discretion.

- Evidence must demand contrary verdict before appellate court will reverse discretion of trial court. Weaver v. Weaver, 238 Ga. 101, 230 S.E.2d 886 (1976).

Between parents, best interests of child control.

- In divorce action in which child custody is an issue, test for use by trial court in determining which parent shall have child custody is best interests of child. Gazaway v. Brackett, 241 Ga. 127, 244 S.E.2d 238 (1978).

Upon a review of the trial court's final custody order, despite the wife's contrary claims, nothing in the custody order or the record showed that the court's custody ruling was based on any standard other than what was in the best interests of the children, and nothing showed that the court required the wife to disprove any allegations asserted by the husband. Moreover, the final custody determination need not be the same as that of any temporary order. Hadden v. Hadden, 283 Ga. 424, 659 S.E.2d 353 (2008).

Children's best interests control, regardless of one parent's apparent willingness to give custody to other parent. Weaver v. Weaver, 238 Ga. 101, 230 S.E.2d 886 (1976).

Mother's relocation to another state.

- Although a mother's relocation out of state was not in itself harmful to the children, but the relocation did interfere with the children's family associations in Georgia, the trial court did not abuse the court's discretion in granting custody to the father during the school year. Hardin v. Hardin, 274 Ga. App. 543, 618 S.E.2d 169 (2005).

Mother's relocation out of country.

- Trial court properly awarded joint legal custody to the parties with physical custody to the mother, and allowed the mother, a French citizen like the father, to move to France with the child. The record supported the findings that there was a special bond between the child, the mother, and the mother's family in France and that the mother could not obtain gainful employment in the United States; furthermore, the trial court applied the proper best interests standard in determining custody. LaFont v. Rouviere, 283 Ga. 60, 656 S.E.2d 522 (2008).

Agreement or consent to custody not controlling on court.

- Any agreement or consent to custody between husband and wife is not controlling on court. Weaver v. Weaver, 238 Ga. 101, 230 S.E.2d 886 (1976).

If child custody is unresolved at the end of the evidence, the trial judge should either resolve the question of child custody and so inform the jury prior to their deliberations or, if for any reason the judge does not wish to tell the jury which parent will have custody, the judge must provide the jury with alternative jury forms in which the jury may make different awards, if necessary, depending on which parent will have custody. Curtis v. Curtis, 255 Ga. 288, 336 S.E.2d 770 (1985), overruled on other grounds, Grissom v. Grissom, 282 Ga. 267, 647 S.E.2d 1 (2007).

Factors to be considered in awarding custody.

- In awarding custody, court may properly consider each parent's fitness, character, personality, and general health. Weaver v. Weaver, 238 Ga. 101, 230 S.E.2d 886 (1976).

Improved health, conduct, and moral perspective, alone, will not require award of custody to that parent. Floyd v. Floyd, 218 Ga. 606, 129 S.E.2d 786 (1963).

Improvement of health is factor for consideration in awarding custody.

- Improvement of health is now one of the many factors, germane but not of itself controlling, to be taken into consideration by trial judge in ascertaining to whom award of child custody should be made. Floyd v. Floyd, 218 Ga. 606, 129 S.E.2d 786 (1963).

Legitimacy of child is an appropriate issue in divorce proceeding. McDonald v. Hester, 115 Ga. App. 740, 155 S.E.2d 720 (1967).

Parent's conduct is relevant to issue of custody although divorce is granted on no-fault grounds. Harris v. Harris, 240 Ga. 276, 240 S.E.2d 30 (1977).

Adultery by both parents.

- Trial court did not err in finding that the wife's adultery did not cause the dissolution of the parties' marriage as there was evidence of adultery by both parties as well as evidence that the husband had physically injured the wife and that the husband's return to Ohio to work for his father caused the dissolution of the marriage; accordingly, there was no merit to the husband's argument that he should have been awarded sole custody of the children on the theory that the wife was the "defaulting party." Alejandro v. Alejandro, 282 Ga. 453, 651 S.E.2d 62 (2007).

Court-imposed limitations upon custody awards.

- In awarding custody, court may impose such limitations as may be required by existing facts adduced on trial of issue. Tanner v. Tanner, 221 Ga. 406, 144 S.E.2d 740 (1965).

Petition for divorce need not contain specific prayer for custody.

- When petition for divorce alleged that there were minor children, naming the children, and that petitioner desired to have their custody, it was not necessary that such petition contain a specific prayer for custody. Hammock v. Hammock, 209 Ga. 647, 74 S.E.2d 859 (1953).

Court jurisdiction when parties move after action is instituted.

- When court had jurisdiction of parties at time action was instituted, removal by parties and minor child of their to another county pending final termination of cause as to custody of child, did not deprive court of jurisdiction to pass on question of custody. Rowell v. Rowell, 211 Ga. 127, 84 S.E.2d 23 (1954).

Effect of former decrees or judgments upon custody awards.

- On final verdict for divorce, the court shall not be hampered by former decree of judgment, but will be at full liberty in providing for welfare of children. Zachry v. Zachry, 140 Ga. 479, 79 S.E. 115 (1913).

Court may reserve child custody issue for future determination.

- When court, in entering final decree granting divorce and awarding permanent alimony, reserved therein for future determination prayers of parties as to custody of their minor child, court, at subsequent term, after notice and hearing, had jurisdiction to award custody of such child. Rowell v. Rowell, 211 Ga. 127, 84 S.E.2d 23 (1954).

When no award of child custody is made in final decree of divorce, court has power to reserve issue of child custody and determine custody at subsequent term of court. Harwell v. Harwell, 248 Ga. 578, 285 S.E.2d 12 (1981).

Custody of unborn child may be decided after birth.

- When divorce decree does not determine custody of unborn child, issue may be passed upon in appropriate proceeding instituted for that purpose after birth. Daughtry v. Daughtry, 218 Ga. 557, 129 S.E.2d 788 (1963).

Best interest of child.

- While the trial court may consider the conduct of the parties on the issue of custody, the court ultimately must decide the custody question based on the best interest of the child. Mock v. Mock, 258 Ga. 407, 369 S.E.2d 255 (1988).

Court awarding custody cannot retain exclusive jurisdiction of matter thereafter.

- Order of court in divorce decree, to effect that child of parties should remain within jurisdiction of court and that court retained jurisdiction of cause and parties thereto, constituted attempt on part of trial court to retain exclusive jurisdiction of case, which may not be done. Gibbs v. North, 211 Ga. 231, 84 S.E.2d 833 (1954).

Court's attempt to retain exclusive jurisdiction is a nullity.

- Award of custody in divorce cases is a final judgment and any attempt by the trial court to retain jurisdiction for further orders regarding custody is a nullity and will not divest the award of its finality. Taylor v. Taylor, 231 Ga. 742, 204 S.E.2d 129 (1974).

Children need not be present at interlocutory hearing.

- It is not necessary at interlocutory hearing in action for divorce to entitle court to award temporary custody of children of parties that such children be brought personally into court. Moody v. Moody, 193 Ga. 699, 19 S.E.2d 504 (1942).

Award of sole custody to one parent proper.

- Trial court did not abuse court's discretion in awarding sole physical custody of two minor children to one parent when the grant was in the children's best interests and the other parent had an extramarital affair, but was granted liberal visitation with no restriction on the presence of the person with whom the affair had been conducted. Patel v. Patel, 276 Ga. 266, 577 S.E.2d 587 (2003).

Noncustodial parent not relieved of legal obligation to support child.

- When wife obtains decree granting her a divorce and awarding to her custody of minor child, and no question as to support of such child by father has been made or passed on, he is not relieved of his legal obligation for proper support of such child. Brown v. Brown, 132 Ga. 712, 64 S.E. 1092, 131 Am. St. R. 229 (1909).

Court erred in granting custody of children to separate parties.

- When custody of one child was given to wife (thus a finding that she had not lost her right to custody), the trial court erred in giving custody of the other child to the paternal grandmother and in ordering that child support for such child be paid to thegrandmother. Phelps v. Phelps, 230 Ga. 243, 196 S.E.2d 426 (1973).

Foreign custody decrees are recognized, but subject to modification.

- Decree of divorce awarding custody of children of parties, rendered by court of another state having jurisdiction of subject matter and of parties, shall be given full effect in this state. But such decree cannot anticipate changes which may occur in condition of parents, or in their character and fitness for care of their children. Accordingly, when, in proceeding in this state involving custody of child, change is shown in circumstances of parties materially affecting welfare of child since foreign decree, court in exercise of sound discretion may protect such welfare accordingly, the same as if there has been such a change since the decree rendered in this state. Kniepkamp v. Richards, 192 Ga. 509, 16 S.E.2d 24 (1941).

Procedure for excepting to child custody awards by direct exception.

- When losing party in child-custody case desires to except to the judgment awarding custody of the child, the proper procedure is by direct exceptions to decree, and not by motion for new trial. Alf v. Alf, 226 Ga. 880, 178 S.E.2d 187 (1970).

Complainant in contempt proceeding for noncompliance not subject to counterclaims.

- Filing of mere motion seeking to have party held in contempt for failure to obey custody decree is not tantamount to filing complaint which would subject complainant to jurisdiction of court or to filing of counterclaims. Varn v. Varn, 242 Ga. 309, 248 S.E.2d 667 (1978).

Distinction between temporary and permanent custody awards.

- Temporary award of custody differs from permanent award, as latter is a final adjudication of rights of parties on existing facts, is res judicata, and is subject to change only upon showing of change of conditions affecting the best interests of the child. No such finality exists as to a judgment awarding temporary custody. Adams v. State, 218 Ga. 130, 126 S.E.2d 624, answer conformed to, 106 Ga. App. 531, 127 S.E.2d 477 (1962).

Decree awarding temporary custody is not an adjudication of rights of parties, and is a matter of discretion with the court. Adams v. State, 218 Ga. 130, 126 S.E.2d 624, answer conformed to, 106 Ga. App. 531, 127 S.E.2d 477 (1962).

Court may award temporary custody pending divorce proceeding.

- In all divorce suits, as well as suits for alimony without divorce, judges of superior courts are empowered to determine, not only who shall be entitled to care and custody of minor children pending litigation, but they are empowered to provide for their permanent custody thereafter. Kniepkamp v. Richards, 192 Ga. 509, 16 S.E.2d 24 (1941).

Court may award temporary custody to parent or third party.

- Pending application for divorce, court may in the court's discretion award temporary custody of child to either party or to third party. Adams v. State, 218 Ga. 130, 126 S.E.2d 624, answer conformed to, 106 Ga. App. 531, 127 S.E.2d 477 (1962).

Permanent award not timely.

- Court can make a final disposition of minor children of the parties only when a divorce is granted. Thus, the trial court erred in entering a "Permanent Order of Custody" before a divorce was granted. Rowe v. Rowe, 195 Ga. App. 493, 393 S.E.2d 750 (1990).

Award of temporary custody to grandmother a final judgment.

- When court awarded temporary custody of minor children to grandmother, specifying a date on which further hearing would be held on request of either mother or father, the order was a final judgment and the court was without jurisdiction to amend or modify that judgment. Draper v. Draper, 170 Ga. App. 727, 318 S.E.2d 314 (1984).

When doctrine of res judicata applies.

- Doctrine of res judicata applies when award of custody of minor children has been made; judge may thereafter exercise discretion as to custody of children only so far as there may be new and material conditions and circumstances substantially affecting interest and welfare of children. Adams v. Heffernan, 217 Ga. 404, 122 S.E.2d 735 (1961).

Custody of children of parties seeking divorce is a vital issue to be determined when divorce decree is granted, and parties are entitled to decision on this question as much so as on question of divorce, or amount of permanent alimony, if any, and such a decree becomes final on facts then existing. Any attempt to modify award of custody by declaring it temporary, leaving this issue indefinitely pending in abeyance, and seeking to retain jurisdiction for further investigation will not divest award of the award's finality. Burton v. Furcron, 207 Ga. 637, 63 S.E.2d 650 (1951).

Award is final despite words of limitation.

- Judgment fixing custody of minor child of divorced parents is final on facts then existing and any attempt by the trial judge to retain jurisdiction of the child is a nullity, and once custody is awarded "until further order of court" it is awarded on a permanent basis and only a subsequent change in conditions could justify a further modification. Yde v. Yde, 231 Ga. 506, 202 S.E.2d 423 (1973).

Custody award is conclusive between parties absent changed circumstances.

- Decree of divorce in which custody of child is awarded to one of the parents is conclusive as between parties to such decree as to right of that parent to custody of child, unless change of circumstances affecting welfare of child is shown. Kniepkamp v. Richards, 192 Ga. 509, 16 S.E.2d 24 (1941).

When award of custody of minor child has been duly made, it is conclusive on parties unless there are new and material conditions and circumstances substantially affecting interest and welfare of child. Bagley v. Bagley, 226 Ga. 742, 177 S.E.2d 255 (1970).

Custody award is conclusive between parties though based on agreement.

- When, on grant of divorce between parents, custody of minor children was awarded to the mother, the fact that the decree as to custody was based upon agreement did not deprive the decree of usual attribute of conclusiveness. While in all such cases, the paramount issue is the welfare of the children, the doctrine of res adjudicata is nevertheless applicable; and when an award has been made, the judge may thereafter exercise discretion as to the custody of the children only so far as there may be new and material conditions and circumstances substantially affecting their interest and welfare. Fortson v. Fortson, 195 Ga. 750, 25 S.E.2d 518 (1943), later appeal, 197 Ga. 699, 30 S.E.2d 165 (1944).

Custody cannot be modified in subsequent contempt proceedings.

- Terms of final divorce decree as to custody cannot be modified in subsequent contempt proceedings because any change in custody must be accomplished through new proceedings based upon evidence showing change in circumstances affecting interest and welfare of minor children. Parker v. Parker, 242 Ga. 64, 247 S.E.2d 862 (1978).

Finality of order modifying custody.

- An order modifying custody, issued following a "temporary" hearing under USCR 24.5, was final. In a post-decree custody modification action authorized by a prior version of O.C.G.A. § 19-9-3(b), the trial court was without authority to enter a "temporary" custody award. Hightower v. Martin, 198 Ga. App. 855, 403 S.E.2d 862 (1991), but see Massey v. Massey, 227 Ga. App. 906, 490 S.E.2d 205 (1997).

Evidence of parties' character, conduct, and reputation is admissible.

- Evidence touching character, conduct, and reputation of either of the parties, or any other evidence tending to throw light on their fitness to be the custodian of the child, is admissible; but conclusions deducible from this testimony are not subject-matter of opinion by witnesses. Moore v. Dozier, 128 Ga. 90, 57 S.E. 110 (1907); Milner v. Gatlin, 143 Ga. 816, 85 S.E. 1045, 1916B L.R.A. 977 (1915).

Husband's alcoholism and resulting cruel treatment to wife and children are relevant to custodial fitness. Weaver v. Weaver, 238 Ga. 101, 230 S.E.2d 886 (1976).

Admissibility of evidence tending to show immorality of wife.

- See Goodin v. Goodin, 166 Ga. 38, 142 S.E. 158 (1928).

Finding that mother should have partial custody.

- Judgment that there has been an improvement in health of mother and that such improvement has progressed to extent that she should have partial custody of children on stated occasions consistent with best interests and welfare of children is necessarily a holding that she was not a fit and proper person to have complete custody of children. Northcutt v. Northcutt, 220 Ga. 245, 138 S.E.2d 377 (1964).

Award of custody to grandparents proper.

- When evidence of parents' fitness is in conflict, award of custody to grandparents is proper. Phillips v. Phillips, 161 Ga. 79, 129 S.E. 644 (1925).

Trial judge's determination of fitness generally not disturbed.

- When evidence is in conflict in regard to fitness of each of the divorced parents of minor child to have custody of the child, discretion of trial judge in awarding child to the child's mother will not be controlled. Speer v. Speer, 217 Ga. 341, 122 S.E.2d 84 (1961).

In contest between mother and father over their minor child, when evidence respecting fitness of parties is in conflict, discretion of trial judge in making award of custody to mother during nine months each year will not be controlled by reviewing court. Everritt v. Everritt, 217 Ga. 425, 122 S.E.2d 920 (1961).

When there is contest between mother and father over their minor child, and evidence respecting fitness of parties is in conflict, discretion of trial judge in making award will not be controlled by appellate court. Brown v. Brown, 222 Ga. 446, 150 S.E.2d 615 (1966).

Unless evidence demands finding contrary to trial court's judgment that parent is "fit" or "unfit," judgment of trial court on such issue is conclusive and will not be disturbed on appeal. Hardy v. Hardee, 225 Ga. 585, 170 S.E.2d 417 (1969).

On appeal from a custody modification order entered against a parent, pretermitting whether there was any evidence to support the court's finding that the parent was unfit, and even if the court unnecessarily included such a finding in the court's modification order, the parent failed to demonstrate that this finding constituted reversible error. Weil v. Paseka, 282 Ga. App. 403, 638 S.E.2d 833 (2006).

When parent is entitled to custody as against third party.

- When a third party (e.g., a grandparent) is being awarded custody of child as part of divorce case, or when such third party sues to obtain child custody from the parent, the test is not simply the best interests or the welfare of the child because the parents are being deprived of the custody of their child. In such cases, a parent is entitled to be awarded custody by the trial court unless it is shown by clear and convincing evidence that such parent is unfit or otherwise not entitled to custody under the laws. Gazaway v. Brackett, 241 Ga. 127, 244 S.E.2d 238 (1978).

Custody of third party as opposed to natural parent.

- Between a third party and a natural parent, the parent is entitled to custody unless it is shown by clear and convincing evidence that the parent either has lost the parental right to custody under O.C.G.A. §§ 19-7-1 and19-7-4 or is unfit. Blackburn v. Blackburn, 168 Ga. App. 66, 308 S.E.2d 193 (1983).

When third person entitled to custody.

- As between parent and third person, discretion of court does not exist and it is only when the parent has lost the right to custody that the child may be placed in the custody of the third person. Phelps v. Phelps, 230 Ga. 243, 196 S.E.2d 426 (1973); Bowman v. Bowman, 234 Ga. 348, 216 S.E.2d 103 (1975).

Judge cannot terminate parental rights in divorce proceedings.

- Superior court judge, upon hearing divorce and child custody case, does not have jurisdiction to terminate parental rights, although the judge can exercise judicial discretion as to best interests of child to award custody to party other than parents. Cothran v. Cothran, 237 Ga. 487, 228 S.E.2d 872 (1976).

Custody award to third person based on parent's unfitness supported by reasonable evidence will be affirmed. Gazaway v. Brackett, 241 Ga. 127, 244 S.E.2d 238 (1978).

Custody award to third person requires clear and convincing evidence.

- When custody is given to third persons, rather than one of natural parents, standard of proof to be applied is that of clear and convincing evidence. Guest v. Williams, 240 Ga. 316, 240 S.E.2d 705 (1977).

Temporary custody of minor child to third party.

- Temporary custody of minor child may be given to third party although parents are fit. Foster v. Foster, 230 Ga. 658, 198 S.E.2d 881 (1973).

Third parties awarded temporary custody cannot appeal revocation of order.

- When presiding judge pending divorce proceeding places minor children of litigants in possession of third parties prior to final decree, such third parties do not become parties to divorce case, but are mere temporary custodians of children, agents of court, appointed for convenience of judge to aid the judge in seeing that children are adequately cared for until the judge's further order. Revocation of such an order by one subsequently entered, while divorce case is still pending, cannot be made subject of appeal by parties to whom children were temporarily entrusted. Graham v. Graham, 219 Ga. 193, 132 S.E.2d 66 (1963).

When judge may modify award of temporary custody.

- Until final decree is entered, judge may modify the judge's orders in this respect and transfer possession of children from persons to whom custody was originally granted and commit the children into care of other and different parties. Graham v. Graham, 219 Ga. 193, 132 S.E.2d 66 (1963).

Discretion given trial judge in temporary award of custody of children pending suits for divorce is broad as long as case is in bosom of court and no permanent custody has been granted as in final divorce. Therefore, trial judge may, on the judge's own motion, change custody of children even in hearing set to hear contempt. Mathews v. Mathews, 230 Ga. 779, 199 S.E.2d 179 (1973).

Constitutionality of this section's child selection provision.

- Child selection provision of former Code 1933, § 30-127 (see now O.C.G.A. § 19-9-1) did not violate Ga. Const. 1976, Art. I, Sec. II, Para. IV (see now Ga. Const. 1983, Art. I, Sec. II, Para. III). Froug v. Harper, 220 Ga. 582, 140 S.E.2d 844 (1965).

Provision allowing children over 14 years to select custodial parent.

- Intent of statute was to recognize that child of 14 years or more was mature enough to select parent with whom the child desires to live and that this right of selection was controlling despite previous adjudications of unfitness. Harbin v. Harbin, 238 Ga. 109, 230 S.E.2d 889 (1976).

Self-executing change of custody.

- Absent a finding of unfitness, a self-executing change of custody, when a child's selection is controlling, serves the interest of judicial economy by effecting the change of custody and establishing child support obligations without the necessity of court proceedings. Weaver v. Jones, 260 Ga. 493, 396 S.E.2d 890 (1990).

Even as to children over 14 years, judge has discretion.

- Though child 15 years of age has right to select which parent the child desires to live with, the trial judge must determine what is in the best interest, welfare, and happiness of the child and in making this determination the judge has wide latitude and discretion. Pritchett v. Pritchett, 219 Ga. 635, 135 S.E.2d 417 (1964).

Child's right to choose.

- No parental right of custody by judgment or decree can defeat the child's right to choose. Adams v. Adams, 219 Ga. 633, 135 S.E.2d 428 (1964); Harbin v. Harbin, 238 Ga. 109, 230 S.E.2d 889 (1976).

Choice of child over 14 years is controlling.

- Language of statute allowing selection by child who has reached age of 14 years of parent with whom he or she desires to live was controlling save and except in one situation which was expressly recited therein. That exception is when parent so selected is determined by trial court not to be a fit and proper custodian. Froug v. Harper, 220 Ga. 582, 140 S.E.2d 844 (1965).

Prior adjudication of unfitness of parent.

- To hold that prior adjudication of unfitness is res judicata or evidence of present unfitness would overly restrict statutory right of child who has reached 14 years of age to select parent with whom the child wishes to live. Harbin v. Harbin, 238 Ga. 109, 230 S.E.2d 889 (1976).

When court has no discretion regarding child's selection.

- Child's selection of parent with whom the child desires to live, when child has reached 14 years of age, is controlling absent finding that such parent is unfit. Without finding of unfitness, child's selection must be recognized and court has no discretion to act otherwise. Harbin v. Harbin, 238 Ga. 109, 230 S.E.2d 889 (1976).

Showing required to defeat child's right of selection.

- Right of selection of child over 14 years can only be defeated by showing of present unfitness. Harbin v. Harbin, 238 Ga. 109, 230 S.E.2d 889 (1976).

Testimony of children unheard after parent found unfit.

- Trial court did not err in a divorce proceeding by declining to hear the testimony of the parties' two minor children as to their preferences because the trial court declared the mother to be an unfit parent. Moon v. Moon, 277 Ga. 375, 589 S.E.2d 76 (2003).

Effect of denying child's request.

- When trial court awards 14-year-old child to parent selected by such child as parent with whom the child desires to live, it is tantamount to finding that such parent is fit, just as denial of such child's request must be construed as finding that such parent is unfit. Hardy v. Hardee, 225 Ga. 585, 170 S.E.2d 417 (1969).

Effect of older child's selection on younger child.

- After a 15-year-old daughter indicated that she wanted to change her custody arrangement and live with her mother, and the mother was found to be a fit and proper custodial parent, such change was ordered pursuant to O.C.G.A. § 19-9-1; upon such custody change of the older daughter, a material change in circumstances occurred such that the trial court should have made a determination whether it was in the younger daughter's best interests to also change custody to the mother as she wished and pursuant to O.C.G.A. § 19-9-3(a)(2). Durham v. Gipson, 261 Ga. App. 602, 583 S.E.2d 254 (2003).

Award of 14-year-old to parent of choice will not be disturbed.

- When court awarded custody of 14-year-old to parent with whom the child expressed a desire to live and evidence does not demand finding that such parent is unfit, judgment of trial court must be affirmed. Hardy v. Hardee, 225 Ga. 585, 170 S.E.2d 417 (1969).

Since there were no allegations of parental unfitness, a 14-year-old child was entitled to select which parent to live with; therefore, the trial court properly approved the parents' settlement agreement that reflected the child's desire to change residential custodians. Ford v. Hanna, 293 Ga. App. 863, 668 S.E.2d 271 (2008).

Parent resisting child's selection must bear burden of proving that parent selected is unfit. Harbin v. Harbin, 238 Ga. 109, 230 S.E.2d 889 (1976).

Requirement of new proceedings.

- Petition for change of custody must be accomplished through new proceedings, not by motion. Blalock v. Blalock, 247 Ga. 548, 277 S.E.2d 655 (1981).

Limitation period inapplicable to parental request for change of custody.

- Father's petition for a change in child custody that contained sufficient allegations of events materially affecting the child's welfare was not subject to the two-year limitation otherwise imposed by O.C.G.A. § 19-9-1. Petry v. Romo, 249 Ga. App. 99, 547 S.E.2d 736 (2001).

Trial judge has discretion in deciding to change custody.

- While proof of changed conditions and that child's welfare will be protected by changing custody will authorize judgment to that effect, yet, if evidence does not demand finding to that effect, the matter is left to the discretion of the trial judge. Floyd v. Floyd, 218 Ga. 606, 129 S.E.2d 786 (1963).

When exercising court's discretion in relocation cases, as in all child custody cases, the trial court must consider the best interests of the child and cannot apply a bright-line test; this means that an initial custodial award will not always control after any new and material change in circumstances that affects the child is considered. When there was competent evidence in the record that a father was neglecting the medical needs of his children and that the children were doing much better while living with the mother, such evidence was sufficient evidence of a material change in circumstances affecting the best interests of the children that warranted a transfer of custody from the father to the mother. Frank v. Lake, 266 Ga. App. 60, 596 S.E.2d 223 (2004).

Custody award may be forfeited by subsequent actions.

- When divorce decree, awarding custody to father, vests prima facie right of custody in father, that prima facie right of custody may be forfeited by actions of father subsequent to rendition of decree. Sessions v. Oliver, 204 Ga. 425, 50 S.E.2d 54 (1948).

Parent awarded custody does not have vested right.

- When award of custody is made to parent in divorce action and subsequently there is a change of circumstances and conditions affecting welfare of child, parent to whom custody was awarded does not have vested right of custody that will defeat further action by courts. Adams v. Adams, 219 Ga. 633, 135 S.E.2d 428 (1964).

Change of custody to promote child's health, happiness, or welfare.

- Altered circumstances may render change in custody necessary in order to promote health, happiness, or welfare of child, and in determining whether or not there has been such a change, the trial judge is vested with discretion which will not be controlled by the appellate court unless the discretion is abused. Madison v. Montgomery, 206 Ga. 199, 56 S.E.2d 292 (1949).

Child's interests and welfare are main considerations in custody change based on new conditions. Elders v. Elders, 206 Ga. 297, 57 S.E.2d 83 (1950).

Judge cannot change custody absent evidence of new, material conditions.

- Although the judge is given wide discretion, the judge is restricted to evidence, and is unauthorized to change custody if there is no evidence to show new and material conditions that affect the welfare of the children. Young v. Young, 216 Ga. 521, 118 S.E.2d 82 (1961); Danner v. Robertson, 221 Ga. 516, 145 S.E.2d 554 (1965).

Findings of fact required.

- Case was remanded to the trial court for the entry of findings of fact because without an explicit statement specifying the factual bases for the court's implicit conclusion that a change in material conditions or circumstances justified a change in custody, the Court of Appeals was not in a position to evaluate whether the court acted within the limits of the court's discretion. Gordy v. Gordy, 246 Ga. App. 802, 542 S.E.2d 536 (2000).

Change of custody from one natural parent to the other.

- As between natural parents, change in custody of minor child may be awarded only upon a showing of a change in material conditions or circumstances of the parties or the child, subsequent to the original decree of divorce and award of custody, and that the change of custody would be in the best interests of the child. Blackburn v. Blackburn, 168 Ga. App. 66, 308 S.E.2d 193 (1983).

Court's continuing jurisdiction to modify decree due to changed circumstances.

- Judge of superior court granting divorce is not only vested with plenary authority in awarding custody of child but has continuing jurisdiction over that subject matter, in event it should later be made to appear that there has been a subsequent change of circumstances materially affecting the welfare of the child. Ponder v. Ponder, 198 Ga. 781, 32 S.E.2d 801 (1945).

Court awarding custody in divorce does not retain exclusive jurisdiction.

- It cannot be said that the judge of the superior court, by awarding custody of minor children in decree of divorce, acquired exclusive jurisdiction as to their future custody, under former Code 1933, § 30-127 (see now O.C.G.A. § 19-9-1) and Ga. Const. 1976, Art. VI, Sec. IV, Para. I (see now Ga. Const. 1983, Art. VI, Sec. IV, Para. I). Interest and welfare of minor children being paramount issue, even in contest between parents, or by other persons against parents, state is also parens patriae, and neither child nor state was finally concluded by divorce proceedings. Fortson v. Fortson, 200 Ga. 116, 35 S.E.2d 896 (1945).

Court can change custody when custodial parent resides in Georgia.

- When mother and child now reside in this state, and when father filed petition in superior court of this state for injunction against mother, court would be authorized, if there was competent evidence of change in condition of parties since decree, materially affecting child's welfare, to make new award of custody. Kniepkamp v. Richards, 192 Ga. 509, 16 S.E.2d 24 (1941).

Where change of custody actions must be brought.

- Proceedings relating to custody of minor children, against person awarded custody by divorce court, must be brought in county of such person's residence. Brinson v. Jenkins, 207 Ga. 218, 60 S.E.2d 440 (1950).

Trial court has no jurisdiction to modify original divorce decree to change custody of minor children, when action is not brought in jurisdiction of residence of parent having legal custody, who in legal contemplation has possession of children. Fernandez v. Fernandez, 232 Ga. 697, 208 S.E.2d 498 (1974).

Despite child's attaining age of 14 and residing in Georgia with noncustodial parent, Georgia court is not authorized to relitigate issue of legal custody. Only a court where custodial parent resides has right to award change in custody. Bayard v. Willis, 241 Ga. 459, 246 S.E.2d 315 (1978).

Any action for a change of legal custody shall be brought as a separate action in the county of residence of the legal custodian of the child, and the trial court cannot entertain a counterclaim for a change of custody in the county of legal residence of the non-custodial parent. Bullington v. Bullington, 181 Ga. App. 256, 351 S.E.2d 700 (1986).

Inasmuch as the record shows that divorce action terminated with the entry of a final judgment and decree; that the wife subsequently changed her residence to another county; and that the husband filed his motion to modify outside the term of court, the trial court erred in ruling on the husband's motion to modify visitation. Ward v. Ward, 194 Ga. App. 669, 391 S.E.2d 480 (1990).

Full faith and credit principles do not prevent custody change.

- It is well established that giving full faith and credit to custody decree of sister state does not bar court of this state from considering and changing custody based on a change of condition subsequent to decree. Lodge v. Lodge, 230 Ga. 652, 198 S.E.2d 861 (1973).

Judgments of other states awarding custody are subject to modification.

- Judgment awarding custody of child, whether rendered by courts of sister state or by courts of Georgia, may be modified upon application when it is shown that there is such change of conditions since rendition of decree as will affect the welfare of the child. Peeples v. Newman, 209 Ga. 53, 70 S.E.2d 749 (1952).

Court did not lose jurisdiction despite age of child.

- Trial court did not lose jurisdiction to consider a parent's petition for a change in custody. While the child had selected the parent as the custodial parent, the court had authority to intervene in that selection at the time the petition was filed, and the trial court did not lose that authority simply because the child turned 18 by the time the court was considering the petition. Wade v. Corinthian, 283 Ga. 514, 661 S.E.2d 532 (2008).

Change in custody not reversed when supported by reasonable evidence.

- If the trial judge finds from evidence that welfare of children is affected and changes their custody, that decision will be affirmed on appeal when there is reasonable evidence to support the decision. However, if the trial judge finds from evidence that welfare of children is not affected and refuses to change their custody, that decision also will be affirmed on appeal. Hawkins v. Hawkins, 240 Ga. 30, 239 S.E.2d 358 (1977).

On appeal when the permanent child custody award has been made, the appellate court will not reverse if there is any reasonable evidence to support the change in custody. Gazaway v. Brackett, 241 Ga. 127, 244 S.E.2d 238 (1978).

When a change of custody between natural parents has been awarded because of a material change of conditions affecting the welfare of the child, the Court of Appeals will affirm if there is reasonable evidence to support the decision. Blackburn v. Blackburn, 168 Ga. App. 66, 308 S.E.2d 193 (1983).

Contempt proceeding.

- Trial court cannot modify terms of divorce decree and change child custody in a contempt proceeding. Groover v. Simpson, 234 Ga. 714, 217 S.E.2d 163 (1975).

Trial court exceeded the court's authority by entering an order within the context of a contempt proceeding which had the effect of modifying custody. McCall v. McCall, 246 Ga. App. 770, 542 S.E.2d 168 (2000).

Custody cannot be changed by modification of visitation rights.

- Trial court cannot seek to effect a change in legal custody under the exercise of the court's power to modify a parent's visitation rights. It was therefore error to indirectly effect a custody change by modifying a visitation schedule. Martin v. Buglioli, 185 Ga. App. 702, 365 S.E.2d 866 (1988).

Evidence of change confined to matters transpiring subsequent to decree.

- In action for child custody based on change of conditions after original decree awarded custody to one parent, evidence of unfitness of parties must be confined to matters transpiring subsequent to decree. Mallette v. Mallette, 220 Ga. 401, 139 S.E.2d 322 (1964).

Record supported the trial court's judgment transferring primary physical custody of three children from their mother to their father after their mother entered into a relationship with another woman who displayed hostility towards their father, their mother moved to California to take care of her parents, and their mother showed financial irresponsibility. Weickert v. Weickert, 268 Ga. App. 624, 602 S.E.2d 337 (2004).

Change of custody based on changes since custody award.

- Once a permanent child custody award has been entered, the test for use by a trial court in change of child custody suits is whether there has been a change of conditions affecting the welfare of the child. Gazaway v. Brackett, 241 Ga. 127, 244 S.E.2d 238 (1978).

Evidence of conditions existing before decree.

- Since on inquiry as to custody of child after previous divorce decree, only evidence showing change of conditions is material, evidence as to former finances, alleged misconduct, or character and temperament, all existing before decree, ordinarily are incompetent. Kniepkamp v. Richards, 192 Ga. 509, 16 S.E.2d 24 (1941).

Change in custody based on denial of visitation.

- Mother repeatedly precluding the father from exercising court-ordered visitation with the parties' six-year-old son was a change in circumstances adversely affecting the child which entitled the father to obtain a change in custody. Jones v. Kimes, 287 Ga. App. 526, 652 S.E.2d 171 (2007).

Divorce decree is prima facie evidence in mother's favor.

- Decree in divorce suit awarding custody to mother is prima facie evidence in her favor and father cannot regain custody without showing affirmatively that material change in circumstances affecting welfare of children has occurred since original decree. Fortson v. Fortson, 195 Ga. 750, 25 S.E.2d 518 (1943), later appeal, 197 Ga. 699, 30 S.E.2d 165 (1944).

Voluntary surrender of custody is change in condition authorizing court to consider a new issue of custody. Wilt v. Wilt, 229 Ga. 658, 193 S.E.2d 833 (1972); Lodge v. Lodge, 230 Ga. 652, 198 S.E.2d 861 (1973).

Surrender of custody is change of condition.

- Surrender by mother of custody of children to their paternal grandmother is such a change in condition as will authorize court to consider again the question of custody. Askew v. Askew, 212 Ga. 46, 90 S.E.2d 409 (1955).

Forfeiture of custody by custodial parent automatically vests prima facie right in noncustodial parent. Sessions v. Oliver, 204 Ga. 425, 50 S.E.2d 54 (1948).

Upon death of custodial parent under divorce decree, right to custody automatically inures to surviving parent. Girtman v. Girtman, 191 Ga. 173, 11 S.E.2d 782 (1940); Howard v. Greenway, 223 Ga. 252, 154 S.E.2d 367 (1967).

Natural rights of father are not annulled by award of custody in divorce proceedings but are only suspended for time being and are revived in full force and effect upon death of parent to whom custody was awarded. Adams v. State, 218 Ga. 130, 126 S.E.2d 624, answer conformed to, 106 Ga. App. 531, 127 S.E.2d 477 (1962).

When parents themselves cannot transfer custody by new agreement.

- After custody decree, parents themselves cannot by new agreement transfer custody to father without consent of court as representative of state and children. Nor would their private recitals in an attempted agreement be binding upon court as evidence of change in condition. Fortson v. Fortson, 195 Ga. 750, 25 S.E.2d 518 (1943), later appeal, 197 Ga. 699, 30 S.E.2d 165 (1944).

Changes relating primarily to parents and not affecting child's welfare.

- When evidence as to change in circumstances and conditions subsequent to divorce decree related primarily to parents and not child, and there was no evidence showing material change of circumstances or conditions affecting welfare of child, court erred in awarding custody to defendant mother. Young v. Young, 216 Ga. 521, 118 S.E.2d 82 (1961).

Showing of custodial parent's unfitness not essential.

- It is not essential when seeking custody change to show unfitness of custodial parent. Adams v. Heffernan, 217 Ga. 404, 122 S.E.2d 735 (1961).

When moral unfitness may be considered regarding custody change.

- Moral unfitness may be considered in petition for change of custody if substantial change materially affecting welfare of child can be shown. Johnson v. Edison, 235 Ga. 820, 221 S.E.2d 813 (1976).

Changed circumstances not limited to moral or financial condition.

- 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. Adams v. Heffernan, 217 Ga. 404, 122 S.E.2d 735 (1961).

Improvement in parent's health.

- Continued progress by an alcoholic parent in a 12-step program and continued sobriety over a substantial period of time constitutes a factual predicate from which a court may infer that the parent's health has improved, and this constitutes one factor which can be considered in determining a change of condition. In re R.R., 222 Ga. App. 301, 474 S.E.2d 12 (1996).

Past mental problems of parent are insufficient grounds for change.

- Although past mental problems of parent are insufficient grounds on which to base present change of custody, reasonable evidence which supports finding that conditions have changed that have had present affect on child, warrants custody change. McNair v. McNair, 242 Ga. 105, 249 S.E.2d 572 (1978).

Remarriage of parent alone is insufficient to authorize modification of custody award; an engagement to marry would likewise be insufficient. North v. North, 209 Ga. 883, 76 S.E.2d 617 (1953).

Remarriage alone of one of the parties is not such a change of circumstances affecting welfare of child as will justify change in custody. Fennell v. Fennell, 209 Ga. 815, 76 S.E.2d 387 (1953).

Remarriage of father is not such change of condition as authorizes modification of custody award. Bagley v. Bagley, 226 Ga. 742, 177 S.E.2d 255 (1970).

Custodial parent's remarriage and plans to move to another state.

- Fact that defendant has remarried, and intends to remove children to another state with her present husband, does not constitute or amount to such change of condition as would authorize modification of decree. Mercer v. Foster, 210 Ga. 546, 81 S.E.2d 458 (1954).

Relocation to another state.

- Georgia law does not permit a modification of custody based solely on a custodial parent's relocation to another state. Ofchus v. Isom, 239 Ga. App. 738, 521 S.E.2d 871 (1999).

Notice of relocation.

- Lack of notice to the other parent of relocation of a child, standing alone, does not constitute a material change affecting the welfare of the child; however, any adverse emotional impact caused a child by the child's sudden unannounced relocation constitutes a factor which can be considered in the totality of the circumstances. In re R.R., 222 Ga. App. 301, 474 S.E.2d 12 (1996).

Custodial parents could not simply pick up and move on a moment's notice given the requirements of O.C.G.A. § 19-9-1 and that fact supported the holding that any self-executing change of child custody provision that failed to give paramount import to a child's best interests in a change of custody as between parents violated Georgia's public policy. Scott v. Scott, 276 Ga. 372, 578 S.E.2d 876 (2003).

Refusing to permit visitation and turning children against noncustodial parent.

- Allegations that father had moved the children over 1000 miles away from mother's residence, that when she travels that distance to see children, he refuses to let her visit them or lets her see them only when it pleases him, that he has insulted her and intimidated her, has prejudiced children against her, instructed them not to call her mother and told them that she was not their mother, were such allegations of fact as would support conclusion that he was an unfit person to have their custody and, if proven to be true, to authorize change in custody. Jones v. White, 209 Ga. 412, 73 S.E.2d 187 (1952).

Effect of 14-year-old's change of custody upon younger child.

- Award of custody of the 14-year-old child to father was a sufficient change in condition to warrant change of custody of a younger child to the father as well since the trial court found that the younger child had become dependent upon the 14-year-old and that it was in the younger child's best interest that the child not be separated from the older child after an election to live with the father. Parkerson v. Parkerson, 167 Ga. App. 265, 306 S.E.2d 97 (1983).

Evidence supported finding of no material change in condition.

- There was ample evidence to support the trial judge's finding that there was no material change in condition warranting a change in custody since there was evidence that both parties were involved in meretricious relationships in the presence of the child but no evidence that either party committed sexual acts in the presence of the child. Hayes v. Hayes, 199 Ga. App. 132, 404 S.E.2d 276, cert. denied, 199 Ga. App. 906, 404 S.E.2d 276 (1991).

Parties' disagreement not a change in circumstance.

- Fact that parties had been in agreement but, at the time of modification, were not in agreement, was not a change of circumstance. Templeman v. Earnest, 209 Ga. App. 557, 434 S.E.2d 106 (1993).

Order modifying child custody was required to incorporate parenting plan.

- Trial court's order amending an earlier child custody modification judgment because the order contained terms not pronounced by the trial court in the court's oral ruling was proper under O.C.G.A. § 19-9-3(b); however, the trial court's order neither set forth nor incorporated a parenting plan as required by O.C.G.A. § 19-9-1(b), requiring remand to the trial court. Epstiner v. Spears, 340 Ga. App. 199, 796 S.E.2d 919 (2017).

Portion of custody award concerning visitation may be modified.

- In any case in which judgment has been entered awarding custody of minor, on motion of any party or on motion of court, that portion of judgment concerning visitation rights between parties and their minor children may be subject to review and modification or alteration. Tirado v. Shelnutt, 159 Ga. App. 624, 284 S.E.2d 641 (1981).

Jurisdiction over custody issues includes visitation rights.

- Court whose jurisdiction over issues involving custody was first invoked has full authority to determine all such issues, including visitation rights. Tirado v. Shelnutt, 159 Ga. App. 624, 284 S.E.2d 641 (1981).

Modification of visitation rights by court.

- Court in which petition to change custody is brought may also modify visitation rights. Tirado v. Shelnutt, 159 Ga. App. 624, 284 S.E.2d 641 (1981).

Submission to parenting plan in custody and modification actions.

- Provisions of O.C.G.A. § 19-9-1(a), which require the parties to submit parenting plans in custody and modification actions, and contemplate the inclusion of a parenting plan in legal actions involving custody, apply to petitions to modify visitation. Moore v. Moore-McKinney, 297 Ga. App. 703, 678 S.E.2d 152 (2009).

Divorced parent has natural right of access to the child awarded to other parent, and only under exceptional circumstances should right or privilege be denied. Shook v. Shook, 242 Ga. 55, 247 S.E.2d 855 (1978).

When court should specify times, places, and circumstances of visitation.

- When parent was not shown to be unfit, trial judge abused discretion in refusing to amend divorce decree to specify times, places, and circumstances for visitation since parties had been unable to agree between themselves. Shook v. Shook, 242 Ga. 55, 247 S.E.2d 855 (1978).

Counterclaim for increased support in visitation rights modification proceeding.

- When divorced nonresident had voluntarily submitted himself to jurisdiction of the court in order to assert his claims to modify visitation rights, mother is not required to state her claim requesting increase in child support in an independent and separate action. Houck v. Houck, 248 Ga. 419, 284 S.E.2d 12 (1981).

Visitation rights do not constitute custody.

- Party awarded permanent custody of minor children is only party with "custody" of children until changed by court order; visitation rights, even extensive visitation rights, do not constitute custody. Atkins v. Zachary, 243 Ga. 453, 254 S.E.2d 837 (1979).

Parent not deprived of visitation rights despite children's unwillingness to visit.

- Desires of children under 14 years of age in not wanting to visit their father is not sufficient to deny him his right of visitation. They may, however, be taken into consideration by trial judge in deciding appropriate circumstances under which father may visit children. Shook v. Shook, 242 Ga. 55, 247 S.E.2d 855 (1978).

Effect of nonpayment of child support or alimony upon visitation.

- Visitation rights should not be dependent upon whether child support or alimony has been paid. Price v. Dawkins, 242 Ga. 41, 247 S.E.2d 844 (1978).

Noncustodial parent's past delinquency not ground for denying visitation rights.

- When custody is awarded to one parent, it is usual and proper to permit other parent to have reasonable access to child. But court may in proper case forbid access by one spouse to child whose custody is awarded to other, or limit right to visit child to particular time and place; but mere past delinquency of parent is not ground for withholding enjoyment of right. Scott v. Scott, 154 Ga. 659, 115 S.E. 2 (1922), overruled on other grounds, Price v. Dawkins, 242 Ga. 41, 247 S.E.2d 844 (1978).

"Specific" visitation privileges following award of "reasonable" visitation.

- Statute allowed trial judge who had made award of permanent custody with "reasonable" visitation privileges to provide specific visitation privileges once in two-year period following date of entry of such judgment. Edwards v. Edwards, 237 Ga. 779, 229 S.E.2d 632 (1976).

Filing of petition under subsection (b) does not affect ability to file petition under § 19-6-18. - Ga. L. 1964, p. 713, § 1 (see now O.C.G.A. § 19-6-18) related strictly to petitions for modification of alimony or child support, and should not be read so as to prohibit filing of such petition within two years of filing of petition for change of custody by same party under former Code 1933, § 30-127 (see now O.C.G.A. § 19-9-1). Wilde v. Wilde, 239 Ga. 750, 239 S.E.2d 3 (1977).

Enforcement of visitation rights incorporated into final decree of divorce.

- See Shook v. Shook, 242 Ga. 55, 247 S.E.2d 855 (1978).

Modification of visitation rights in contempt proceeding is permissible.

- Statute allowed modification of visitation rights on motion of either party or on motion of trial judge in contempt proceeding. Sampson v. Sampson, 240 Ga. 118, 239 S.E.2d 519 (1977); Parker v. Parker, 242 Ga. 64, 247 S.E.2d 862 (1978); Kent v. Tankersley, 243 Ga. 471, 254 S.E.2d 851 (1979); Munday v. Munday, 152 Ga. App. 232, 262 S.E.2d 543 (1979).

Court in which contempt action is brought has authority to modify visitation rights. Tirado v. Shelnutt, 159 Ga. App. 624, 284 S.E.2d 641 (1981).

Visitation rights may be modified on motion of trial judge in contempt action, and such a motion is not a new action, but is simply a motion in the original case. Blalock v. Blalock, 247 Ga. 548, 277 S.E.2d 655 (1981); Stewart v. Stewart, 245 Ga. App. 20, 537 S.E.2d 157 (2000).

Section authorizes modification of visitation rights on motion of any party to the former case (including grandparents), without necessity of showing a change of conditions. George v. Sizemore, 238 Ga. 525, 233 S.E.2d 779 (1977).

Visitation rights may be modified on motion of either party, and such a motion is not a new action, but is simply a motion in the original case. Blalock v. Blalock, 247 Ga. 548, 277 S.E.2d 655 (1981).

Modification by motion.

- Any conflict between the provisions of O.C.G.A. §§ 19-9-1(b) and19-9-3(b) with those of O.C.G.A. § 19-9-23, insofar as seeking modification of visitation rights by motion is concerned, is harmonized by holding that the former come into play only when jurisdiction and venue are also proper. Bennett v. Wood, 188 Ga. App. 630, 373 S.E.2d 645 (1988).

Modification of child visitation rights is a matter of discretion with trial court. Parker v. Parker, 242 Ga. 781, 251 S.E.2d 523 (1979).

Modification of child visitation rights is a matter of discretion with trial court and may be based upon existing circumstances even if the circumstances have not changed since prior award. Tirado v. Shelnutt, 159 Ga. App. 624, 284 S.E.2d 641 (1981).

Showing of changed circumstances is unnecessary for modifying visitation rights.

- Statute provided means of changing custody without necessity of evidence of change in conditions and circumstances. Froug v. Harper, 220 Ga. 582, 140 S.E.2d 844 (1965).

New proceeding based upon evidence showing change in circumstances affecting interest and welfare of minor children is not only way visitation rights may be modified, but such a new proceeding based upon evidence showing change in circumstances is required as regards a modification of custody. Parker v. Parker, 242 Ga. 64, 247 S.E.2d 862 (1978).

When third party has been awarded permanent custody of child, parent may obtain custody by showing change of conditions affecting welfare of child, but such parent may obtain increased visitation without necessity of showing such change of conditions. Gazaway v. Brackett, 241 Ga. 127, 244 S.E.2d 238 (1978).

Increase or decrease in visitation will be affirmed unless trial court abused the court's discretion. Gazaway v. Brackett, 241 Ga. 127, 244 S.E.2d 238 (1978).

Trial judge is fully authorized to modify visitation rights without necessity of any showing of change in conditions. Tirado v. Shelnutt, 159 Ga. App. 624, 284 S.E.2d 641 (1981).

Father's sexual impropriety towards daughter rendered increased visitation rights error.

- When evidence showed sexual impropriety of father towards daughter under 14 and daughter's dislike of father, it was error for the trial judge to increase the father's visitation rights. Ledford v. Bowers, 248 Ga. 804, 286 S.E.2d 293 (1982).

Visitation with homosexual parent.

- Primary consideration in determining custody and visitation issues is not the sexual mores or behavior of the parent, but whether the child will somehow be harmed by the conduct of the parent. In re R.E.W., 220 Ga. App. 861, 471 S.E.2d 6 (1996).

Father's deployment.

- Upon father's deployment, the trial court did not abuse the court's discretion in prohibiting the child from leaving the U.S. as the order did not purport to place exclusive jurisdiction in the trial court and attempted to continue the child's relationship with the mother; furthermore, even if the father was assigned to duty overseas, he retained primary physical custody of the child and maintained the right to move for modification if his circumstances changed. Curtis v. Klimowicz, 279 Ga. App. 425, 631 S.E.2d 464 (2006).

Fourteen year olds' election rights limited by 1986 amendment.

- Visitation is part of custody. Having made the wishes of a 14-year-old as to custody binding upon the court unless the parent chosen is unfit, the 1986 legislation could not have intended to preclude consideration of the child's wishes as to visitation. O.C.G.A. §§ 19-9-1(a) and19-9-3(a) preserve the authority of the trial court to set visitation rights based upon the best interests of the child, but do not prohibit the court from using the wishes of a child over 14 years of age together with other factors as the basis for the court's decision. Worley v. Whiddon, 261 Ga. 218, 403 S.E.2d 799 (1991).

Failure to incorporate parenting plan in final order.

- In a modification petition, although the father's visitation was subject to the election of the child, and the trial court awarded the mother sole legal and physical custody of the child, the father's parental rights were not terminated and, thus, the trial court failed to incorporate a parenting plan in the final order. Moore v. Moore, 346 Ga. App. 58, 815 S.E.2d 242 (2018).

Permanent custody determination upon divorce being entered.

- When a superior court transfers the question of custody determination to a juvenile court pursuant to O.C.G.A. § 15-11-6(b), the juvenile court may make only a temporary custody determination pending the outcome of the divorce action; but if the divorce is entered it can then make a permanent custody determination. 1994 Op. Att'y Gen. No. U94-1.

ALR.

- Attempt to bastardize child as affecting right to custody of the child, 4 A.L.R. 1119; 37 A.L.R. 531.

Validity of agreement by parent to surrender custody of child in consideration of promise to leave property to child, 15 A.L.R. 223.

Attempt to bastardize child as affecting right to custody of the child, 37 A.L.R. 531.

Action between parents for the sole purpose of determining custody of child as a proper remedy, 40 A.L.R. 940.

Condition of health of child as consideration in awarding custody, 48 A.L.R. 137.

Power of court to modify the provisions of its decree respecting custody of child as affected by absence of parent or child from its territorial jurisdiction, 70 A.L.R. 526.

Extraterritorial effect of provisions in decree of divorce as to custody of child, 72 A.L.R. 441.

Jurisdiction acquired by court in divorce suit over custody and maintenance of child as excluding jurisdiction of other local courts, or as rendering its exercise improper, 146 A.L.R. 1153.

Induction into military service of one to whom custody of children has been awarded in divorce suit, 151 A.L.R. 1498; 155 A.L.R. 1477; 156 A.L.R. 1476, 157 A.L.R. 1472, 158 A.L.R. 1489, 158 A.L.R. 1490.

Decree for alimony in installments as within full faith and credit provision, 157 A.L.R. 170.

Extraterritorial effect of provision in decree of divorce as to custody of child, 160 A.L.R. 400.

Jurisdiction of trial or appellate court in respect of custody of children pending appeal from order or decree in divorce suit, 163 A.L.R. 1319.

Jurisdiction to award custody of child having legal domicil in another state, 4 A.L.R.2d 7.

Material facts existing at the time of rendition of decree of divorce but not presented to court, as ground for modification of provision as to custody of child, 9 A.L.R.2d 623.

Nonresidence as affecting one's right to custody of child, 15 A.L.R.2d 432.

Power of court, on its own motion, to modify provisions of divorce decree as to custody of children, upon application for other relief, 16 A.L.R.2d 664.

Alienation of child's affections as affecting custody award, 32 A.L.R.2d 1005.

Consideration of investigation by welfare agency or the like in making or modifying award as between parents of custody of children, 35 A.L.R.2d 629.

Right to custody of child as affected by death of custodian appointed by divorce decree, 39 A.L.R.2d 258.

Remarriage of parent as ground for modification of divorce decree as to custody of child, 43 A.L.R.2d 363.

Opening or modification of divorce decree as to custody or support of child not provided for in the decree, 71 A.L.R.2d 1370.

Complete denial of visitation rights of divorced parent, 88 A.L.R.2d 148; 51 A.L.R.3d 520; 22 A.L.R.4th 971.

"Split," "divided," or "alternate" custody of children, 92 A.L.R.2d 695.

Violation of custody or visitation provision of agreement or decree as affecting child support payment provision, and vice versa, 95 A.L.R.2d 118.

Propriety of court conducting private interview with child in determining custody, 99 A.L.R.2d 954.

Child's wishes as factor in awarding custody, 4 A.L.R.3d 1396.

Power of court which denied divorce, legal separation, or annulment, to award custody or make provisions for support of child, 7 A.L.R.3d 1096.

Award of custody of child to parent against whom divorce is decreed, 23 A.L.R.3d 6.

Award of custody of child where contest is between child's father and grandparent, 25 A.L.R.3d 7.

Award of custody of child where contest is between child's mother and grandparent, 29 A.L.R.3d 366.

Award of custody of child where contest is between child's grandparent and one other than the child's parent, 30 A.L.R.3d 290.

Divorce: necessity of notice of application for temporary custody of child, 31 A.L.R.3d 1378.

Noncustodial parent's rights as respects education of child, 36 A.L.R.3d 1093.

Right, in child custody proceedings, to cross-examine investigating officer whose report is used by court in its decision, 59 A.L.R.3d 1337.

Effect, in subsequent proceedings, of paternity findings or implications in divorce or annulment decree or in support or custody order made incidental thereto, 78 A.L.R.3d 846.

Right to require psychiatric or mental examination for party seeking to obtain or retain custody of child, 99 A.L.R.3d 268.

Custodial parent's sexual relations with third person as justifying modification of child custody order, 100 A.L.R.3d 625; 65 A.L.R.5th 591.

Validity and effect, as between former spouses, of agreement releasing parent from payment of child support provided for in an earlier divorce decree, 100 A.L.R.3d 1129.

Admissibility of social worker's expert testimony on child custody issues, 1 A.L.R.4th 837.

Visitation rights of persons other than natural parents or grandparents, 1 A.L.R.4th 1270.

Parent's physical disability or handicap as factor in custody award or proceedings, 3 A.L.R.4th 1044.

Initial award or denial of child custody to homosexual or lesbian parent, 6 A.L.R.4th 1297.

Race as factor in custody award or proceedings, 10 A.L.R.4th 796.

Desire of child as to geographical location of residence or domicile as factor in awarding custody or terminating parental rights, 10 A.L.R.4th 827.

Necessity of requiring presence in court of both parties in proceedings relating to custody or visitation of children, 15 A.L.R.4th 864.

Religion as factor in child custody and visitation cases, 22 A.L.R.4th 971.

Effect of remarriage of spouses to each other on child custody and support provisions of prior divorce decree, 26 A.L.R.4th 325.

Interference by custodian of child with noncustodial parent's visitation rights as ground for change of custody, 28 A.L.R.4th 9.

Court-authorized permanent or temporary removal of child by parent to foreign country, 30 A.L.R.4th 548.

Visitation rights of homosexual or lesbian parent, 36 A.L.R.4th 997.

Primary caretaking role of respective parents as factor in awarding custody of child, 41 A.L.R.4th 1129.

Mother's status as "working mother" as factor in awarding child custody, 62 A.L.R.4th 259.

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.

Rights and obligations resulting from human artificial insemination, 83 A.L.R.4th 295.

Child custody: when does state that issued previous custody determination have continuing jurisdiction under Uniform Child Custody Jurisdiction Act (UCCJA) or Parental Kidnapping Prevention Act (PKPA), 28 USCS § 1738A, 83 A.L.R.4th 742.

Child custody and visitation rights of person infected with AIDS, 86 A.L.R.4th 211.

Denial or restriction of visitation rights to parent charged with sexually abusing child, 1 A.L.R.5th 776.

Significant connection jurisdiction of court under § 3(a)(2) of the Uniform Child Custody Jurisdiction Act (UCCJA) and the Parental Kidnapping Prevention Act (PKPA), 28 USCS § 1738A(c)(2)(B), 5 A.L.R.5th 550, 67 A.L.R.5th 1.

Abandonment and emergency jurisdiction of court under § 3(a)(3) of the Uniform Child Custody Jurisdiction Act (UCCJA) and the Parental Kidnapping Prevention Act (PKPA), 28 USCS § 1738A(c)(2)(C), 5 A.L.R.5th 788.

Continuity of residence as factor in contest between parent and nonparent for custody of child who has been residing with nonparent - modern status, 15 A.L.R.5th 692.

Age of parent as factor in awarding custody, 34 A.L.R.5th 57.

Validity and construction of provisions for arbitration of disputes as to alimony or support payments or child visitation or custody matters, 38 A.L.R.5th 69.

Mental health of contesting parent as factor in award of child custody, 53 A.L.R.5th 375.

Custodial parent's relocation as grounds for change of custody, 70 A.L.R.5th 377.

Child custody and visitation rights arising from same-sex relationship, 80 A.L.R.5th 1.

Religion as factor in visitation cases, 95 A.L.R.5th 533.

Restrictions on parent's child visitation rights based on parent's sexual conduct, 99 A.L.R.5th 475.

Religion as factor in child custody cases, 124 A.L.R.5th 203.

Availability and use of electronic communication in child custody and visitation determinations, 96 A.L.R.6th 103.

Sufficiency of evidence to modify existing joint legal custody of children pursuant to consent order or divorce judgment - general principles, jurisdictional issues, and general issues related to "best interests of child," 99 A.L.R.6th 203.

Sufficiency of evidence to modify existing joint legal custody of children pursuant to consent order or divorce judgment - conduct or condition of parents; evidentiary issues, 100 A.L.R.6th 1.

Comment note: In camera examination or interview of child in custody proceedings, 9 A.L.R.7th 6.

Construction and application of International Child Abduction Remedies Act (42 USCS § 11601 et seq.), 125 A.L.R. Fed. 217.