Smith v. Curtis
316 Ga. App. 890
| Ga. Ct. App. | 2012Background
- Smith petitioned to modify custody, support, and visitation under a Feb. 11, 2009 consent order.
- Trial court granted support modification but terminated all custody/visitation rights from the prior order.
- Smith contends the court erred by terminating his parental rights; the court treated it as a modification of rights, not termination.
- Curtis and Smith were never married; child was legitimated; they shared legal custody but had intense visitation conflict.
- At a 2011 hearing, Smith volunteered to surrender parental rights in open court; court acknowledged it could not terminate rights but treated it as an intent not to exercise parenting time; court downwardly modified support and altered custody/visitation accordingly.
- The appellate court affirmed, holding the voluntary surrender can constitute a material change in condition warranting modification, and the best-interests evidence supported the decision.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Was the court's action a termination of rights or a modification of custody/visitation? | Smith argues the court terminated his parental rights. | Curtis argues the court modified rights, not terminated. | Court properly treated as modification, not termination. |
| Does a voluntary surrender of parental rights constitute a material change in condition? | Smith contends no material change from surrender. | Court can treat surrender as material change. | Yes; voluntary surrender can be a material change warranting modification. |
| Is the custody/visitation modification supported by the best interests and evidence of parental acrimony? | Smith asserts no adequate basis to limit rights. | Court found acrimony and impact on child supporting modification. | Yes; best interests supported by the record. |
Key Cases Cited
- Lynch v. Horton, 302 Ga. App. 597 (2010) (change in material conditions permits new custody award)
- Gildar v. Gildar, 309 Ga. App. 730 (2011) (visitation modification discretionary with supportable evidence)
- Shotwell v. Filip, 314 Ga. App. 93 (2012) (voluntary surrender can be a material change in condition)
- Weickert v. Weickert, 268 Ga. App. 624 (2004) (court need not remand for exact statutory language when findings exist)
- Ray v. Denton, 278 Ga. App. 69 (2006) (text affirming nonliteral application of material-change concept)