From time to time one or both parents express a desire to have physical custody change automatically upon a certain date or upon a set of circumstances. I have to inform the parent or parents that this is not permitted in Georgia and thus it cannot be included in a court order, or if it is somehow included in a court order, it will not be enforceable.
Other times a child custody order entered in another state, which contains a self-executing change of custody clause is domesticated to the State of Georgia. I have to tell these parents that while Georgia honors the orders of other states, there are limitation on such, and Georgia will only enforce terms of another state’s order that are consistent with Georgia Law. As Georgia does not recognize self-executing changes of custody, that term will not be enforced by a Court in Georgia.
Self-executing change of custody provisions are not expressly prohibited by statutory law, but the Georgia Supreme Court ruled as follows:
“we hold that any such provision that fails to give paramount import to the child’s best interests in a change of custody as between parents violates this State’s public policy as expressed in OCGA § 19-9-3. …self-executing change of custody provisions are not rendered valid merely because the initial award of custody may have been based upon the child’s best interests. It is not the factual situation at the time of the divorce decree that determines whether a change of custody is warranted but rather the factual situation at the time the custody modification is sought. Scott v. Scott, 276 Ga. 372, 375-76, (2003).
Thus, any modification of custody will be based on the best interest of the child, which exist at the time the modification action is brought.