BANKSTON v. WARBINGTON; And Vice Versa
332 Ga. App. 29
Ga. Ct. App.2015Background
- Parents originally agreed mother had primary physical custody (2004); father later obtained increased visitation after mother moved out of Georgia. Father filed to change custody in 2011 alleging instability and parental alienation by mother.
- Trial held September 2012; guardian ad litem and witnesses described multiple maternal relocations, interference with therapy, discouraging friendships, poor notice to father, and conduct undermining the father–child relationship.
- Trial court (Oct. 2012) modified primary physical custody to father for 18 months beginning January 2013, with a self‑executing provision returning custody to mother one week before the 2014–2015 school year; ordered interim child support accordingly and reserved fees.
- Mother filed numerous post‑trial motions; judge later recused and successor held a post‑trial hearing (Oct. 2013) and found several maternal filings frivolous, awarding father $9,362.50 in fees (Nov. 2013).
- Appeals: Mother (A14A1514) challenged the custody modification; father cross‑appealed (A14A1515) the self‑executing return provision, the pre‑set child support change timed to that return, and the trial court’s failure to rule on his earlier fee request. Court stayed the self‑executing return pending appeal.
Issues
| Issue | Bankston (mother) — Argument | Warbington (father) — Argument | Held |
|---|---|---|---|
| Whether trial court abused discretion by modifying custody to father (effective Jan 2013) | Modification was not supported by evidence; court misweighed statutory best‑interest factors | Modification was supported by evidence of maternal alienation and instability | Affirmed: some evidence supported modification to father for at least 18 months |
| Validity of self‑executing provision automatically returning custody to mother in summer 2014 | Provision acceptable as part of temporary plan | Provision impermissibly removes court discretion at time of change; should be stayed | Vacated: self‑executing change violates Scott v. Scott; remand for hearing to determine custody at that time |
| Child support change timed to the self‑executing custody return | Support schedule as ordered by trial court | Support change improper while automatic return vacated | Vacated child support change; support must await custody determination on remand |
| Trial court’s failure to rule on father’s pre‑trial/trial fee request | Fees not warranted or already addressed | Trial court failed to consider written fee request for fees through trial | Vacated fee order and remanded for evidentiary hearing on father’s request for reasonable fees and GAL costs incurred through trial |
Key Cases Cited
- Williams v. Williams, 295 Ga. 113 (2014) (deference to trial court custody findings; best interest standard)
- Viskup v. Viskup, 291 Ga. 103 (2012) (custody change affirmed where evidence showed undermining of parent–child relationship)
- Scott v. Scott, 276 Ga. 372 (2003) (self‑executing custody changes tied to triggering events violate OCGA § 19‑9‑3(a)(2))
- Vines v. Vines, 292 Ga. 550 (2013) (appellate review: no abuse if any evidence supports trial court)
- Lynch v. Horton, 302 Ga. App. 597 (2010) (modification requires material change and best‑interest analysis)
- Unifund CCR Partners v. Mehrlander, 309 Ga. App. 685 (2011) (guidance on remanding fee awards under OCGA § 9‑15‑14)