Background
Cynthia and Samuel Day were divorced in 2021 and shared a daughter born in 2020. Under the original settlement agreement and parenting plan, the parents shared legal custody, with the mother having primary physical custody and final decision-making authority over education, non-emergency health care, religion, and extracurricular activities. The father had regular visitation including every other weekend and overnight visits on Wednesdays and Fridays.
In December 2023, the father filed a petition for modification of custody, parenting time, and child support, alleging a material change in circumstances. Following an evidentiary hearing, the trial court expressly found that there had been no material change in circumstances affecting the child’s welfare. Despite this finding, the court entered a modification order that increased the father’s parenting time, altered decision-making authority by allowing each parent independent control over extracurricular activities and religious upbringing, and decreased the father’s child support. The modification order also contained an internal contradiction: the order itself gave the mother final decision-making on education, while the incorporated parenting plan gave that authority to the father.
After the term of court expired before reconsideration could be granted, the mother filed a motion to set aside the modification order under OCGA section 9-11-60(d), arguing it contained nonamendable defects on its face. A motion to set aside under this statute — a procedural vehicle unique to Georgia practice — permits a party to challenge a judgment after the term of court has expired based on defects apparent from the record or pleadings themselves. The trial court denied the motion, and the mother appealed.
The Court’s Holding
Writing for the First Division, Presiding Judge Barnes affirmed in part and reversed in part. The Court applied the well-established two-part test for custody modifications under OCGA section 19-9-3(b): first, the trial court must find a material change in circumstances affecting the child’s welfare; second, it must determine whether modification serves the child’s best interests. Critically, both physical and legal custody changes require the threshold finding of changed circumstances.
The Court held that because the trial court expressly found no material change in circumstances, it was not authorized to modify legal custody by altering decision-making authority over religion and extracurricular activities. Under Georgia law, final decision-making authority over education, health care, religious upbringing, and extracurricular activities is an aspect of legal custody under OCGA section 19-9-6(5). The father’s argument that the mother induced the error by consenting to certain changes at the hearing was rejected, because oral pronouncements have no legal significance and discrepancies between oral and written rulings must be resolved in favor of the written judgment.
However, the Court affirmed the modification of parenting time, holding that under OCGA section 19-9-3(b) and Park-Poaps v. Poaps, visitation rights may be reviewed and modified every two years without requiring a material change in circumstances, applying only a best-interests standard.
Key Takeaways
- Under Georgia law, any change to legal custody — including which parent has final decision-making authority over education, religion, health care, or extracurricular activities — requires a threshold finding of a material change in circumstances, even when a trial court characterizes the modification as merely adjusting parenting arrangements.
- Parenting time and visitation, by contrast, may be modified every two years under OCGA section 19-9-3(b) without showing changed circumstances, applying only the best-interests-of-the-child standard.
- A motion to set aside under OCGA section 9-11-60(d) remains an effective tool for challenging internally contradictory orders after the term of court has expired, particularly where the trial court’s own findings are irreconcilable with its rulings.
Why It Matters
This decision draws a sharp practical line for Georgia family law practitioners between modifications of legal custody and modifications of parenting time. Trial courts that find no material change in circumstances are strictly limited to adjusting visitation schedules and cannot use that proceeding as an opportunity to reallocate decision-making authority. The opinion also serves as a cautionary tale about the importance of internal consistency in modification orders, particularly when a court incorporates a separate parenting plan that may conflict with the body of its order.
For appellate practitioners, Day illustrates the continued viability of OCGA section 9-11-60(d) as a post-judgment remedy when the trial court’s own written findings create irreconcilable contradictions on the face of the record.