Self-Executing Modifications in Georgia: Six Things Everyone Should Know
One of the things I have learned over the years is that we can not be a Jack-of-all-trades and a master-of-none. In today’s ever-changing world we need to have connections with professionals in other disciplines and specialties. This is especially true working in the divorce area.
In the past, it was the attorney’s job to do everything. Today, divorcing couples are starting to pool the expertise they need into teams of outside experts. In addition to attorneys, they are using financial specialists, mental health professionals, and child specialists. For professionals, I think it is important that we do the same thing and have our own list of specialists.
In Georgia, we have many questions about what parents can and can not do with certain provisions in their parenting plan. As a financial neutral and mediator, we need to be able to give information. We are not giving advice but giving information, when asked. There has been a lot of discussion in Georgia about self-executing modifications.
The article below is by Melody Richardson, Managing Member of Richardson Bloom & Lines LLC, where she focuses primarily on complex and high asset matrimonial matters.
SELF-EXECUTING MODIFICATIONS: SIX THINGS EVERYONE SHOULD KNOW
Twelve years after the Supreme Court of Georgia first held that self-executing change of custody provisions are not permissible, many questions still exist as to what is and is not permissible when it comes to changes in parenting plans that do not require court intervention. When will the court uphold the provision and when will the court hold the provision to be invalid and unenforceable? When can the parents agree to a modification of child support without court intervention?
Here are six things you need to know when drafting the parenting plan and child support provisions of your settlement agreement.
1. A planned event that will occur at a readily identifiable time, such as a child beginning kindergarten, which is used as a trigger for a change in parenting time, is a permissible self-executing provision.
2. An 18-month change in custody at the end of which time primary custody would return to the other parent is not valid.
3. A parent’s visitation may not be changed automatically based on a future event, including the determination of a therapist, without any additional judicial scrutiny. But see number one above, that allows the change to be tied to a readily identifiable time and event.
4. A parenting plan that alternates primary custody annually and automatically, is a self-executing provision for modification of custody and is not permissible or valid.
5. Child support may only be modified prospectively.
6. An agreement may contain self-executing provisions for the modification of child support, if the modified child support amount falls within the Georgia Child Support Guidelines.
About The Authors:
Robert D.Bordett, CFP, CDFA - A Certified Financial Planner and Certified Divorce Financial Analyst™, Bob Bordett has long helped couples, families and businesses make sound financial decisions through Alternative Dispute Resolution methods. Bob serves in the capacity of financial neutral and is a Registered Mediator and Registered Arbitrator with the Georgia Commission on Dispute Resolution. He currently is serving on the board of Professional Mediator Board of Standards and the Association of Divorce Financial Planners.
In addition to his collaborative and mediation practice, Bob is also Senior Vice President of Consolidated Planning Corporation, and a member of both the Academy of Professional Family Mediators and the Association of Divorce Financial Planners. He is also active with the International Academy of Collaborative Professionals, having served on their board as well.
Melody Richardson, JD - Melody is the Managing Member of Richardson Bloom & Lines LLC, where she focuses primarily on complex and high asset matrimonial matters, Melody draws on her 30-years of diverse litigation experience to bring practical and case-specific solutions to all of her clients. Although she has substantial litigation experience and success, Melody is also an active leader in the field of collaborative law. Melody also has an extensive Guardian ad Litem practice, and is a certified mediator.
Melody served as a board member of the Family Law Section of the Atlanta Bar Association from 2002-2009. Melody was the Chair of that Section in 2009. She is an acknowledged leader in her field, having been selected for inclusion as a Georgia Super Lawyer each year since 2007, one of Georgia’s Top 50 Women Lawyers every year since 2009, and as one of Georgia’s Top 100 Lawyers. Melody has been selected by her peers for inclusion in The Best Lawyers in Georgia 2015 and 2016, and is a Fellow in Litigation Counsel of America.
 Scott v. Scott, 276 Ga. 372, 578 S.E.2d 876 (2004). The Supreme Court held that a provision that said that if the mother, who was awarded primary physical custody of the parties’ two-year-old daughter, moved outside of Cobb County, Georgia, that primary physical custody would automatically change to the father, was unenforceable. In order to change custody, the court hold, the best interest of the child must be considered at the time of the proposed change.
 Lester v. Boles, 335 Ga. App. 891, 782 S.E.2d 53 (2016).
 Bankston v. Warbington, 332 Ga. App. 29, 771 S.E.2d 726 (2015).
 Ezunu v. Moultrie, 334 Ga. App. 270, 779 S.E.2d 44 (2015); Johnson v. Johnson, 290 Ga. 359, 721 S.E.2d 92 (2012).
 Oxford v. Fuller, ____ Ga. App. ___ (August 11, 2016)(parents had shared physical custody when they lived close to each other and the children liked spending time with both parents, so trial court modified custody to alternate annually after mother moved to another county a substantial distance away.
 Robertson v. Robertson, 266 Ga. 516, 467 S.E.2d 556 (1996).
 Scott-Lasley v. Lasley, 278 Ga. 671, 604 S.E.2d 761 (2004); see also O.C.G.A. § 19-6-15.