Panel Discussion: When Children Come First
Panel examines impact of ruling that lets courts consider custodial parent’s relocation a substantial change in circumstances
The Daily Report
When Dr. David Bodne decided to relocate from Georgia to Alabama, he probably had no idea he’d be moving a piece of Georgia’s child custody law, too.
Bodne and his wife divorced in 1999. Their two children divided their time equally between parents, though he had physical custody. When he decided to move, his ex-wife sought primary physical custody and, in a departure from prior Georgia case law, she won.
Their case, decided by the state Supreme Court late last year, dismantled the presumption that a custodial parent who is relocating has a prima facie right to retain custody. Bodne v. Bodne, 277 Ga. 455 (2003).
The court’s decision overruled or altered nearly a century of child custody law, and brought the issue of relocation under the aegis of the best interests of the child standard.
Prior to Bodne, Georgia law presumed that unless the custodial parent’s relocation endangered the child’s physical, mental or emotional well-being, relocation alone wasn’t sufficient to constitute a change in circumstances warranting a modification. As a result, courts didn’t even get to a best-interest analysis. Bodne, in essence, lowers the bar for what comprises a significant change in circumstances.
But did Bodne go too far? Should the court have found that relocation of a custodial parent is a substantial change in condition, rather than lowering the threshold for change in condition generally? Should the high court have offered a clearer standard for trial courts to follow? Without direction from the high court as to what triggers the best-interest standard, will Bodne encourage more custody litigation? And what impact might Bodne have in cases where a custodial parent is relocating to escape an abusive ex-spouse or to take a much-needed, higher-paying job?
The Daily Report invited a panel of local attorneys to discuss these and other issues. Moderator Tanya Washington, assistant professor at Georgia State University College of Law, led family lawyers Emily S. “Sandy” Bair of Emily S. Bair & Associates, Rebecca A. Hoelting of McKenna Long & Aldridge, Randall M. Kessler of Kessler, Schwarz & Solomiany and Bruce R. Steinfeld of Steinfeld & Steinfeld in a discussion examining the impact of the Bodne case and related trends in Georgia custody law. The discussion has been edited for length and clarity.
-Janet L. Conley
Assistant Managing Editor
Washington: How do you think the Supreme Court’s recent decision in the Bodne case affects the use of the best interest of the child standard going forward in Georgia cases where an initial custody determination has already been made?
Kessler: I think what the Bodne case does is it gets us to the best interest standard a little quicker. In Georgia law, the statute pertaining to custody requires that there be a significant change in material circumstances before the court can even look at what’s best for the child.
Bodne addressed one big issue in Georgia, which was that a relocation by a custodial parent was not construed as a change of circumstances. If somebody moved out of state, we never got to the question of what’s in the best interest of the children.
Now that Bodne says that a move can be considered a change of circumstances, it makes it easier to pass that threshold and get to the second level of inquiry, which is what is in the best interest of the child.
I don’t think we’ve changed the standard in Georgia. I think the standard is still as it is in the statute. You still have to show this change in material circumstances. I just think it shows that the Supreme Court is willing to say “Get to the best interest a little quicker.
Washington: What impact do you think the case will have on the determination, within that context, after an initial custody determination has already been made?
Bair: I think it will make modification of custody cases easier to win and, therefore, I would suspect that there will be more of them. Modification in Georgia historically has required that the party who wants to modify has the burden of proof. Under the case that Bodne overruled, which is Ormandy v. Odom [217 Ga.App. 780 (1995)], a rule was established that a party who was awarded custody in the first instance, like in a divorce, thereafter had a prima facie right to custody.
A prima facie right sets up a presumption so that the Superior Court was required in a modification case to presume that custody should not be changed and to presume that what was good the first time would be good the second time.
The party who was seeking modification had to prove a substantial change of conditions materially affecting the best interest of the child that was a bar, if you will, that the lawyer who was seeking modification had to jump over. Bodne substantially lowers the bar. And that is a direction that custody law has been going in Georgia.
Family law is really a trend of social change [that] is always a little behind society. The trend is toward treating each parent, mother or father, much more equally. In the 1970s, when I started, mothers and fathers in custody cases were not treated equally. Mothers had a leg up, fathers had a genetic defect and that was that. You had to have a mother who was crazy, suicidal, drug-addicted, and alcoholic, or had hurt her children physically in order to change custody away from a mother.
Washington: What you are saying is interesting in that we’re talking about the best interest of the child standard. The court would argue that this determination was made in the interest of maintaining stability in the child’s life. But isn’t there also some consideration of parental rights that’s motivated the decision, and not just the focus necessarily on what was in the best interest of the child?
Bair: Well, another way of saying it is that when the trial court reached a best-interest analysis, which is the second step in a modification of custody case, it looked at maximizing the chances of the child maintaining a relationship with both parents.
To me, Bodne doesn’t change the best interest standard at all. What it changes is the bar. And it lowers the bar. It changes the change-of-condition requirement and almost eliminates it so that you wake up one Monday morning and you think ‘I’m a better disciplinarian than the other parent. I think I’ll sue for custody.’
Washington: So it’s redefining, in essence, what constitutes a change in circumstances and, if warranted, the court making a second or third or fourth determination.
Bair: Right. There is a school of thought that the law should go in the opposite direction and make change of custody actions much more difficult because change of custody actions cause conflict. Conflict is the worst thing for children to experience between their parents.
Kessler: I just feel so strongly the opposite way. Yes, conflict is bad for children, but if you tell a parent who has custody that you can move with impunity and there is no recourse for the opposing party, it reinforces people’s desire to act unilaterally.
I think the best thing about Bodne is that it gives people pause before they do things such as moving across the country. Before Bodne, people could move and that alone couldn’t be the grounds to initiate a custody battle. At least now they will have to think twice.
I think that Bodne was a way for the judges in the Supreme Court to untie the trial judges’ hands. I think that trial judges are going to try to find a way to get to the right result, whatever the standard is.
Bair: I completely agree with you on that. But what I would have preferred Bodne to do is come up with the same results but find that relocation of a custodial parent is clearly a substantial change of condition-rather than lowering the bar for change of condition completely.
Hoelting: Some of this tends toward the semantic. Good lawyers can craft an order for a judge to sign that articulates a change in circumstances.
If Mom or Dad is moving from Georgia to Texas, for example, there are going to be other changes that impact the child besides the mere fact that it’s a move. Probably everyone sitting around this table has crafted such a complaint successfully to argue a change in circumstance where somebody is moving. So as somebody who serves frequently as a guardian ad litem and has a lot of concern about children first, I think the best interest of the child does need to be the standard at the end of the day.
Washington: From the perspective of what the child needs to secure his or her welfare, do you think it’s better for courts to have more latitude, now that they have untied the hands of the judge? What does that do to the evolution of a consistent rule of law in terms of what is and what is not necessarily in the best interest of the child’s welfare?
Hoelting: I think it’s very hard for anyone sitting in a room around a table in a legislative setting or in a courtroom to say, “Here are the 15 different standards that we are going to use to decide what impacts the child’s best interest.” There is no way to take into account in any particular fact situation what issues are going to come up in that particular case. A whole variety of cases comes into our offices every day, into courtrooms every day, so I think it does have to be a broad standard.
Washington: Bruce, what do you think Bodne achieves in terms of the direction the law was headed? Is it a U-turn? Is it a sidestep?
Steinfeld: I think it may be a broken U. I’m not sure that it’s completely a U-turn. I don’t know what impact Bodne is going to have on nominative relocation cases, but I think that it’s clear we’re going to have a major impact on relocation cases. Let’s draw a poll. Who is in favor of the majority opinion in Bodne?
Five to zero. So all of us think the majority made the right decision. I think that the law prior to Bodne-that a mere relocation by one of the parents, the primary custodial parent, isn’t a ground for modification-was at the very least counterintuitive and maybe a stronger adjective would be appropriate. I think it was contrary to the best interest standard. I think that Bodne is a logical progression in its jurisprudence from Scott v. Scott [276 Ga. 372 (2003)].
The court in Scott said, ‘We can’t put those Carr v. Carr [207 Ga.App. 611 (1993)] provisions in our settlement agreements anymore, because you can’t decide a year ahead of time or five years ahead of time what will be in the child’s best interest in the event of a proposed relocation by one of the parents. You are treating the child like a potted plant. You need to look at the totality of the circumstances at the time of the divorce and determine what would be in the child’s best interest.’
I think it would be extremely inconsistent to take that position in the Scott v. Scott case and say you have to look at the totality of the circumstances and not do exactly what they did in the Bodne case, which is to say that in the event of a proposed relocation you need to look at totality of the circumstances and determine what would be in the child’s best interest.
Bair: In modification cases, the best interest standard has not changed in Bodne. Bodne eliminates the presumption that the initial award of custody is prima facie correct and best for the child. All the Supreme Court had to do, at least in my opinion, was to say that relocation overcomes the presumption because it now is declared to be a substantial change. You don’t even have to say it always is a substantial change. You can say it may be a substantial change because Ormandy v. Odom and that line of cases says that under no circumstances could relocation in and of itself be a substantial change and that was ridiculous.
Steinfeld: I think what it overrules is the presumption that it’s in the child’s best interests to relocate with the parent who is relocating.
Bair: But it clearly states that it overrules Odom to the extent that it presumes that a custodial parent has a prima facie right to retain custody unless the objecting parent shows that the environment of the proposed relocation in this case endangers the child’s physical, mental or emotional well-being.
It’s getting rid of the two-step process. It makes custody modification cases a one-step process. The best interest of the child at the end of the day is always the test of a custody case. But it used to be that you couldn’t get to the best interest of the child until you had a key to open the door. And the key to open the door was a substantial change of condition, which relocation ultimately became. Relocation might not have been that in Ormandy.
Kessler: Family law attorneys are going to use this case any time they need to get into court to change custody. The Bodne case overturns Ormandy and it does say that relocation is now a change of circumstances. It emphasizes that the trial court appropriately looked at myriad factors. I can’t think of a broader term than myriad factors. To the appellate court’s credit, it said in Cousens v. Pittman [No. A03A2450, 2004 WL 530447 (Ga.App. March 18, 2004)] that the trial court did not meet that standard, did not show myriad factors, did not get to that point. So they are going to monitor what the myriad factors are. The burden of proof to show a change of circumstances has been lessened, but it’s now the rule.
Bair: It’s been eliminated almost.
Kessler: It’s not been eliminated because the statute is still there. I think the statute trumps case law. Cousens v. Pittman shows that there is going to be some appellate scrutiny of what the trial court looks at.
That’s not carte blanche for trial courts to say, ‘Now that there is Bodne, as long as we can say there have been myriad factors, we can change custody.’ I think the good news for the public is it’s going to make parents talk and communicate before they file their case with their lawyer and it’s going to keep people trying to work things out before they risk losing custody as they could do before Bodne. They could just move and they didn’t have to worry about someone filing a case.
Washington: Wouldn’t it have the opposite effect, where a noncustodial parent realizes they have more than one bite at the apple to the extent that the threshold inquiry has been either lowered or eliminated?
Then you can have noncustodial parents saying, ‘If they don’t get the initial custody determination right then I’ll just come in and argue something.’ Without direction from the court as to what now triggers the application of the best interest of the child standard, it makes it easier to get into court a second, third, fourth time to re-examine custody.
Kessler: It’s a very legitimate question. I believe there are a few states, including Pennsylvania, where the clear standard is just the best interest of the child. You can go back at any time and show that it’s in the best interest of the child. That is not where we are.
The court has not said that all you have to do is show that it’s in the best interest of the child to change custody. That would be a concern if we went back to that level of inquiry. I think that’s the reason that the statute has not been changed.
But I agree as we get closer and closer to the best interest standard, people may say they are going to have a second bite at the apple. But litigation is expensive. It’s exhausting. People get resigned to the fact that a result is a result and you better have something better the second time than you had the first time.
The one concern we have is people moving from jurisdiction to jurisdiction and thinking maybe a different judge will give a different result and that’s probably a very good reason to keep a standard above what is simply in the best interest of the child. We all know any judge on a given day can come up with a different result than another judge with the same set of facts.
Hoelting: It is expensive to litigate custody cases. It’s also emotionally expensive. It’s not something I envision that because of Bodne people are going to start running back into court at a moment’s notice. I do think they will have to bring something new.
In Bodne there was something significant that happened. Somebody was moving. I think we’re still bound by the statute. I don’t think the Legislature has made any indication that they are going to get rid of the statute that requires a material change in circumstances.
Washington: Turning for just a moment to the actual application of the best interest of the child standard in Bodne, did you agree with the court’s determination, not just in terms of whether or not they should have been using that standard, but how they actually applied it?
Steinfeld: Yes. Having said that, I think that relocation stinks for kids. I like Carr v. Carr provisions because I thought they provided a strong disincentive for a parent to relocate. Parents knew that if they relocated they were giving up custody of their children.
It is really important for children to have a strong, close relationship with both parents. I don’t know whether there is going to be more litigation over relocation after Bodne, or less. I think an argument that can be made is there will be less on the front end.
I think that we’re not going to fight so much about who has joint physical custody versus primary physical custody. We didn’t know what the court was going to do and we tried to position our clients to prevent against relocations in any way we could.
There were a lot of turf battles over terminology and hours and days that the child would spend with one parent or the other to try to prevent a relocation and now that the non-relocating parent has the right to go to court and file a petition for modification if the other parent wants to relocate, maybe there won’t be so much fighting on the front end. You know that you can go back for a modification.
Hoelting: Bruce said he liked Carr v. Carr provisions. I actually did not like Carr provisions for the very reason that Georgia Supreme Court Justice Carol W. Hunstein set out in her dissent, which is, we don’t need to treat children like potted plants. Making predeterminations in settlement agreements about if X or Y occurs, this is where the children go, doesn’t really take into account what makes the most sense for these children at the moment in time when somebody moves. Bodne helps fix that so that there is a new inquiry.
Steinfeld: Let me qualify my previous endorsement of Carr. What I meant was there are certain things I liked about that case and there were certain things that I didn’t like. The prophylactic effect I liked. The fact that it would give the potentially relocating parent pause to think before relocating with the child and moving the child from the child’s home environment and friends and school and other parent I liked. I also liked that it theoretically reduced post-divorce litigation because that issue was resolved. I liked the idea that parents had the freedom to contract on that issue and decide what was going to happen and avoid litigation down the road.
Part of what we try to do as family lawyers, part of the art of drafting these agreements, is to do it in such a way that you minimize the potential for post-divorce litigation, modifications, contempts or what have you. To the extent that Carr did that, I think that was healthy. But I do agree with the Scott v. Scott decision. I was sympathetic to Justice Hunstein’s dissent in Carr that you treat the child like a potted plant.
You don’t know whether the relocation is going to be in the child’s best interest or not. At the same time, to the extent that I think Scott was correct, I think that you do have to evaluate the totality of the circumstances and look at what is going to be in the child’s best interest. I liked that it would provide a strong deterrent for somebody to relocate with a child and move the child away from one parent, which I think could in many cases have a horrible effect on the child.
Kessler: We can sit here and theorize about the ramifications and effects of Bodne. But the bottom line is it’s common-sensical. When we speak to lawyers in other states or talk to laypeople who don’t understand the law and try to explain that in the past, if a parent has been raising children two doors down from the other parent and decides to move to California without consulting the other parent, in Georgia that wasn’t even a basis to get into court to ask the court to look at whether the move should be considered a change significant enough to warrant revisiting custody.
Washington: Do you think the court could have given lower courts more direction in terms of which modification requests to entertain and which warranted a second look?
Kessler: Here is the problem: I think the Court of Appeals and the Supreme Court can always give more direction to the lower courts but we’re talking about custody of children. You can’t have a blanket rule that says this is what is good for custody of children.
There are so many different situations. It comes down to what’s best for the child in the mind of that judge. To try to come up with standards or hoops that judges have to jump through might again handcuff them.
Washington: Does Bodne at least, perhaps implicitly, give trial judges more comfort in stepping outside of what has already been labeled as a significant change in circumstance? Does it give them more latitude to consider different presentations as constituting a change?
Bair: My concern is that this will increase child custody litigation and thereby increase the tendency toward conflict. There are people who want to re-litigate every two to three years. Prior to Bodne, if they came into your office you could say, ‘I’m sorry, but all these issues that you brought up are basically the same old thing. You do have a few new things but nothing really constitutes a substantial change of condition that materially affects the best interest of the child.’
I don’t think that standard is eliminated, but it puts a premium on the clever lawyer or the lawyer who is being paid by a client who has much more money than the other party. Under current family law standards across the country, there is a trend towards eliminating the best interest standard altogether because it has increased litigation between people who were both fit parents. Where the law says both parents are fit, it’s merely a subjective decision on the part of the judge what is in the best interest of the child. While that sounds wonderful, on the other hand it keeps the door wide open for litigation.
Washington: What is the alternative?
Bair: I don’t know what the alternative is and the alternative that I have been reading about for the last couple of years, frankly I don’t endorse, but I do want to point out that the American Law Institute in 2002 published, after 10 years of research, a book entitled “The Principles of the Law of Family Dissolutions, Analysis & Recommendations.”
Chapter 2 covered child custody decisions and had two points. One was to eliminate the best interest standard because it was too elastic, too subjective. By allowing judges a very wide range of power, it thereby had the door far too open.
The idea was to close that door and direct divorcing couples or couples who have children but are not going to live together anymore to develop co-parenting plans.
The ALI publication has a very lengthy chapter about co-parenting plans to deal with all of these problems. There is an emphasis on causing parents to try to anticipate what they might fight about. If they might fight about relocation, then they should have a provision in the agreement to cover that rather than allowing the matter to go through the adversarial system. It’s really a completely different way of approaching child custody litigation than this best interest standard, but the best interest standard is prominent and I’m not by any means ready to get rid of it.
Kessler: Just last month the Court of Appeals stated in Cousens v. Pittman again what it stated in Gordy v. Gordy [246 Ga.App. 802] back in 2000. It says: “We are mindful that the Solomonic task of assigning the custody of children lies squarely upon the shoulders of the judge who can see and hear the parties and their witnesses, observe their demeanor and attitude, and assess their credibility.”
That’s really what it comes back down to. Call it best interest. Call it whatever you want.
Bair: That’s the any evidence rule and as long as you have the any evidence rule your right of appeal in a child custody case is weak at best.
Hoelting: Going back to what Sandy was saying, there are people who want to re-litigate their custody cases ad nauseam every two years. Before Bodne they were doing it and after Bodne they’ll do it. I might not take their case, Sandy might not take their case, but somebody will. They will re-litigate it again if you call it a best interest standard or if you call it a change in circumstance.
It’s a great idea to come up with co-parenting plans. I think it’s, hopefully, what we all strive for as lawyers when we’re faced with custody issues-trying to find a way to bring the parties closer together and trying to come to some agreement. But the cases that end up in the trial court and in the Supreme Court, like Bodne, are not people who are capable of sitting down and having that discussion and working together towards the best interest of their children.
Washington: The facts of the Bodne case are interesting. These parents had some sort of agreement initially that they were both going to contribute; both were considered to be fit. The only difference was that one parent was going to move away. That isn’t necessarily a negative from the standpoint of that parent’s fitness. It may have negative consequences to the child, but these parents actually took steps to try to avoid continuous litigation.
Hoelting: And they did originally. But down the road they couldn’t because somebody decided to move away. What the trial court found in Bodne was something I considered a pretty strong statement: That it was going to cause these children irreparable harm. That is an extraordinarily high standard in the law. That is a standard we use to get a temporary restraining order.
Kessler: Don’t forget the trial judge said this was a change of circumstances knowing that was probably not the law, but he was going to find a way to give custody to the party he wanted to give custody to.
Bodne was the perfect case to decide the relocation issue because this was not one where the custodial parent who had the children 90 percent of the time was going to move. This was one where the parents were 50-50 with the children, they were going back and forth every two weeks, so the move was that much more of an issue.
Steinfeld: In Bodne, the court weighs and balances Dr. Bodne’s reasons for leaving against the impact on the children. The court basically found that he wanted to leave because he wanted to make more money and put the divorce behind him. That’s focusing on him, not focusing on the children.
The impact on the children would be to take them away from the mother who had something close to 50 percent custody. When the court said the children would suffer irreparable harm by being denied regular contact with the mother, that doesn’t strike me as an overstatement.
Sandy said she thinks that maybe in some ways Bodne went too far. I’ll take the radical position that perhaps it didn’t go far enough. What it said was, ‘We are not going to presume that a relocation is in the children’s best interest and let them go with the primary parent. There is no presumption. We have to look at the totality of the circumstances and do a sort of de novo review of the children’s best interest in light of the proposed relocation.’
I would suggest that maybe there should be a rebuttable presumption that it’s not in the children’s best interest to move away from their community, to move away from their friends, to move away from their school and to move away from the other parent. In further support of that, there is a code section in Georgia that sets forth a public policy favoring joint custody. The judge has to consider joint custody.
Washington: In applying the best interest standard, we don’t want a framework where the child is treated like a potted plant but we also don’t want a perspective where the child is treated like a seedling in the wind. We don’t want children placed wherever, wherever based on the whim of the judge. Is there any way to at least limit the considerations or do you think that more abuses would accrue by limiting them than by leaving judges on their own?
Hoelting: We have to have some trust in our trial judges. There is so much that goes into a decision about custody of children that to create bright lines at an appellate level is a scary proposition in a way.
Kessler: Let’s not forget the burden of proof. You still have a standard that says you need to show a material change in circumstances. The person who is bringing a custody action, number one, has a legal burden of proof.
But there is also the moral, ethical or philosophical burden of proof to eyeball the judge and for the judge to look back at you and say, ‘All right, you paid a lawyer, you came into court, you are bringing a whole new lawsuit, you better have something good for taking up our time.’
As lawyers, we explain the law and we try to discourage clients if there is not a good case and we charge them a fee. There are a lot of natural inhibitors to people just trying to take children back and forth.
Bair: One thing that the Supreme Court could do is deal with the issue of attorney’s fees. Right now there is no specific statute that allows a court to award attorney’s fees in a change of custody case. There are statutes for frivolous litigation and statutes to award fees in a divorce and in alimony cases and alimony modification cases and contempt cases, but that statute has not gone so far as to say that attorney’s fees can be awarded in a change of custody case. The Legislature has to do that. The Supreme Court could not do that.
Kessler: Sure. Sandy’s right. The Legislature would have to do that. Or if the case was deemed frivolous, the trial court could do that and the Supreme Court could uphold that.
That’s a way to inhibit people from filing cases and maybe that’s a big problem since that statute doesn’t authorize a trial court to simply award fees for someone to fight a custody battle or to reimburse them for defending a custody battle that should not have been brought.
Bair: One thing we have not talked about is domestic violence and abuse. What if, post-divorce, one party who was verbally and maybe even physically abusive continues to be extremely abusive?
Say the abused party, the one with primary physical custody, tried to get out of that abusive situation by moving away. Does Bodne offer enough protection?
In addition to that, we have to look at higher-income groups and lower-income groups. If a single parent who has physical custody is offered a job opportunity that doubles his or her income but means relocating to Kansas, is that now a substantial change of condition which would warrant a modification of custody lawsuit that this parent simply couldn’t afford to defend?
Washington: In Bodne, the court was looking not only at the adverse consequences to the children of the move, but also at the reason why the relocating parent was leaving. It was to make more money. But that, to me, just glossed over it. I didn’t know if it was because he needed to make more money. Was he just greedy?
I think the court’s assessment of the legitimacy of the motivation is going to inform whether there is a good reason for the relocation, which is also going to affect how judges view the consequences to the child.
If there is a good reason for relocation, which I think the two examples you provided are, then the court may be more inclined to see the consequences to the child as less adverse or unavoidable and consider them in that light.
Bair: It’s a balancing situation. It’s very fact-intensive. Bodne certainly increases the burden on our trial judges to look at all the facts and take the time to understand the case so as not to make a decision that is regrettable.