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Shared Physical Custody - Who Wins?

The divorce decree provided for shared physical custody of the children. When the father learned that his ex-wife planned to remarry and move to Cobb County, he filed a petition to modify custody, "asking that the children reside with him during the school year and with the mother on alternate weekends."

The appellate court noted, "A parent who has been awarded custody pursuant to a divorce decree has a prima facie right to retain such custody, and a trial court in a modification action should ordinarily favor such parent."

But in this case the parents were awarded joint physical custody. "There was no determination that either parent should be the primary custodian. Under these circumstances, (the court found) that each parent has a prima facie right to custody and thus neither parent is entitled to be favored over the other."

"...where the parents have joint physical custody, a decision to change the custody must be based on evidence of a positive or adverse change in the circumstances of either parent, or any change in the circumstances substantially affecting the welfare and best interests of the child...."

The court noted that it has found in other cases that a "move is not necessarily, in and of itself, a sufficient change in condition to authorize a change in custody," but that issue was "only addressed in cases where one parent was designated as the sole or primary physical custodian."

The court also noted that it has found that "difficulty in maintaining a shared custody arrangement can amount to an adverse change in condition affecting the welfare of a child."

The lower court had awarded primary physical custody to the father, and the appellate court agreed.

Lewis v. Lewis, Civil Action No. A01A1625

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