Shotwell v. Filip
314 Ga. App. 93
| Ga. Ct. App. | 2012Background
- Biological parents of J.F. married in 1998; child born in 2000; lived with both parents until 2002 separation, after which J.F. lived primarily with his mother.
- Parents divorced in 2002; prior settlement granted mother-primary physical custody with father having weekend visitation and joint legal custody.
- Mother moved to Oklahoma in 2004, leaving J.F. with maternal grandmother in Missouri; father continued Georgia residence and visitation when possible.
- 2006 consent order modified father's visitation; grandmother acted as custodian via power of attorney in loco parentis; mother intermittently asserted custody through grandmother.
- Mother failed to provide records or notify father of major decisions; grandmother limited some visitation after 2007 school-records incident; later, mother and grandmother enrolled child in summer school and therapy without father's involvement.
- In 2009, father petitioned for change of custody stating material change in condition; trial court granted primary physical custody to father with visitation to mother and grandmother; mother ordered to pay child support.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Material change in condition since last custody award | Mother surrendered custody to grandmother; change occurred | No material change since 2006 consent order | Yes, material change established |
| Best interests standard for custody transfer | Father is fit; child welfare benefits from custody shift | Father unemployed; long separation harms child | Transfer to father in child's best interests |
| Evidence of party involvement in major decisions and access to records | Mother/grandmother excluded father from decisions and records | No substantial exclusion established | Evidence supports exclusion; favors change |
Key Cases Cited
- Lodge v. Lodge, 230 Ga.652 (Ga. 1973) (voluntary surrender of custody can be material change of condition)
- Wilt v. Wilt, 229 Ga.658 (Ga. 1972) (surrender of custody affecting welfare considered material change)
- Redmond v. Walters, 229 Ga.713 (Ga. 1972) (trial court has broad discretion in custody matters)
- Thompson v. Thompson, 153 Ga.App. 80 (Ga. App. 1980) (factors in change of custody include ongoing parental duties)
- Hansen v. Carpenter, 211 Ga.785 (Ga. 1955) (prima facie right to custody resides in noncustodial parent when custodial parent relinquishes)
- Sessions v. Oliver, 204 Ga.425 (Ga. 1948) (statutory preference to custody in parent over third party)
- Galtieri v. O'Dell, 295 Ga.App. 797 (Ga. App. 2009) (presumption in favor of awarding custody to a parent)
- Green v. Krebs, 245 Ga. App. 756 (Ga. App. 2000) (courts defer to trial court's credibility findings in custody decisions)
- In the Interest of T.S., 300 Ga.App. 788 (Ga. App. 2009) (custody decisions analyzed under welfare and best interests principles)
- Lynch v. Horton, 302 Ga.App. 597 (Ga. App. 2010) (need to view evidence in light most favorable to upholding trial court)