Cousens v. Pittman

597 S.E.2d 486, 266 Ga. App. 387, 2004 Fulton County D. Rep. 1044, 2004 Ga. App. LEXIS 378
CourtCourt of Appeals of Georgia
DecidedMarch 18, 2004
DocketA03A2450
StatusPublished
Cited by7 cases

This text of 597 S.E.2d 486 (Cousens v. Pittman) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Cousens v. Pittman, 597 S.E.2d 486, 266 Ga. App. 387, 2004 Fulton County D. Rep. 1044, 2004 Ga. App. LEXIS 378 (Ga. Ct. App. 2004).

Opinion

Smith, Chief Judge.

In this modification of child custody case, the mother, Kathleen Cousens, appeals from the trial court’s order changing physical custody of the child from sole physical custody in the mother to joint physical custody with the father, William Pittman. Because we find that the trial court used improper criteria to effect the change of custody and that the evidence presented did not show that a material change in condition existed or that it was in the child’s best interests, we reverse the judgment.

The record shows that the parents have been divorced for ten years, and both have remarried.1 At the time of the bench trial, the minor daughter of the parties was one month shy of twelve years old. She had always lived with her mother. The father and mother both live in suburban Atlanta, but the father lives in Vinings, and the mother lives in Gwinnett County, where the child goes to school. The relationship between the mother and father has been acrimonious since the time of the divorce, with each party blaming the other. The father had filed a modification action previously, and his visitation was enlarged.

The trial court heard evidence from many witnesses, most of whom testified regarding the unpleasantness between the parents. [388]*388The court also heard testimony from the parents, from the child in chambers, and from the child’s treating psychologist. The child testified that she was aware of the difficulties between her parents and told the trial court that she loved her father, but “I don’t really want to spend a lot more time with him. . . . And whenever I’m away from my mom for a long period of time, I miss her a lot, so it’s hard.” She wanted the custody and visitation arrangement to stay the way it was, saying “I just kind of like it the way it is. I mean, I know... my dad probably doesn’t like it, but I do.”

A school psychologist testified that the child felt that when she was with her father for visitation “she didn’t feel that she was really getting to spend much time with him.” The psychologist who was treating the child testified that the child had told her she felt excluded by her father from his new family, that she was afraid of her father when he was angry, and that she began having suicidal thoughts as a means of avoiding the entire tense situation. These thoughts resolved quickly, according to the psychologist, especially after the father agreed temporarily at the psychologist’s request to forgo some visitation. The child has not expressed any suicidal thoughts since then. The psychologist described the child as “a very high-achieving girl. She sets high standards for herself, has high expectations, meets those expectations. . . . But underneath it all, she struggles with anxiety.” In the psychologist’s opinion, a change in custody “would increase her anxiety.” She did opine that if the parents continue the hostile nature of their relationship, it will continue to be hard for the child. But although pressed by the trial court to predict what might happen if the child were to spend more time with her father, beyond acknowledging that it would raise the child’s anxiety initially, the psychologist insisted she could not do so. “[P] re dieting the course of therapy is really hard.” She acknowledged that any change in custody or visitation is necessarily subject to a risk/detriment analysis. But the psychologist agreed that even if the child and her father were to have an improved relationship, the child still did not want to spend more time with her father.

The guardian ad litem appointed for the child during the course of this litigation performed a very thorough investigation, but the trial court sealed the guardian ad litem’s report and never read or considered the document.

The trial court entered an order reciting its finding that

there has been a substantial change of circumstance. The Court finds that the relationship between [the child] and her father is being irreparably harmed. The Court finds that [the [389]*389child] is emotionally suffering as a result of all of the bickering and the guilt and anxiety that she feels from being caught in the middle between her parents.

The order then modified the divorce decree to give the mother and father joint physical custody, in addition to joint legal custody, requiring the child eventually to shuttle between her father’s home to her mother’s home on alternate weeks, while remaining in school in Gwinnett County and continuing her extra-curricular activities there. The trial court also modified the child support requirement so that when the full alternating physical custody schedule came into effect, neither parent would pay child support to the other.

We granted the mother’s application for discretionary appeal, which was transferred to this court from the Georgia Supreme Court. One of the principal reasons we granted the application was our perception that on its face, the order entered suggested error. At the time the order was entered, Georgia law provided that

In a contest between the parents, the award of custody by a divorce court vests the custodial parent with a prima facie right. Ordinarily, the trial court should favor the parent having such a right. What the court must affirmatively find is either that the original custodian is no longer able or suited to retain custody or that conditions surrounding the child have so changed that modification of the original judgment would have the effect of promoting his welfare. It is a change for the worse in the conditions of the child’s present home environment rather than any purported change for the better in the environment of the non-custodial parent that the law contemplates under this theory.

(Citations and punctuation omitted.) Ormandy v. Odom, 217 Ga. App. 780-781 (1) (459 SE2d 439) (1995). Several months after we granted this application, the Supreme Court decided Bodne v. Bodne, 277 Ga. 445 (588 SE2d 728) (2003), in which Ormandy and other cases were overruled “[t]o the extent that [that] case and any other Georgia case presumes the custodial parent has a prima facie right to retain custody unless the objecting parent shows that the environment of the proposed relocation endangers a child’s physical, mental or emotional well-being.” Id. at 447. See, e.g., Green v. Krebs, 245 Ga. App. 756 (1) (538 SE2d 832) (2000); Holt v. Leiter, 232 Ga. App. 376, 381 (4) (501 SE2d 879) (1998).

In deciding change of custody matters, trial courts may no longer presume that a custodial parent retains a prima facie right to custody. The standard remains, however, that a change of custody may be [390]*390granted only if a “new and material change in circumstances . . . affects the child.” (Citation and punctuation omitted.) Bodne, supra, 277 Ga. at 446. See OCGA § 19-9-1 (b) (for change of custody, must have “showing of a change in any material conditions or circumstances of a party or the minor”). “The statutory language being plain and unequivocal, any contrary judicial construction is unauthorized. [Cit.]” Ferguson v. Ferguson, 267 Ga. 886, 887 (2) (485 SE2d 475) (1997).

Bodne was, of course, decided after the trial court’s order in this case was entered. We need not decide, however, whether Bodne

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Bluebook (online)
597 S.E.2d 486, 266 Ga. App. 387, 2004 Fulton County D. Rep. 1044, 2004 Ga. App. LEXIS 378, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cousens-v-pittman-gactapp-2004.