Summary
In Lifsey v. Lifsey, 256 Ga. 613, 614 (2) (351 S.E.2d 637) (1987), the Supreme Court struck down a nearly identical custody order. If there is any reasonable evidence to support the trial court's decision as to what is in the best interest of the child in a change of custody action between parents, such decision will be affirmed on appeal. Lifsey, supra.
Summary of this case from Steed v. DealOpinion
43910.
DECIDED JANUARY 15, 1987.
Modification of custody. Madison Superior Court. Before Judge Grant.
John W. Timmons, Jr., for appellant.
Andrew J. Hill, Jr., for appellee.
The father was awarded permanent custody of the parties' two young sons in 1981, at the time of the divorce. In 1985, when the father moved out of state, the mother sought a change of custody. The trial court found both parents to be fit custodians, and ordered that the boys live with each parent for alternating periods of 12 months, visiting the other parent on alternate weekends. We granted certiorari to review the Court of Appeals' denial of the father's application for discretionary appeal.
OCGA § 19-9-3 (a) provides that in change of custody cases the trial court's duty "shall be to exercise its discretion to look to and determine what is for the best interest of child or children and what will best promote their welfare and happiness and to make its award accordingly."
1. If there is any reasonable evidence to support the trial court's decision concerning change of custody as between parents, such decision will be affirmed on appeal. Gazaway v. Brackett, 241 Ga. 127, 128 ( 244 S.E.2d 238) (1978). There is evidence in the record to support the trial court's decision to change custody, and we affirm that decision.
2. The terms of changed custody, however, make up a different inquiry. The parents live approximately 400 miles apart and in different states. There is no evidence in the record that might support findings that the best interests of the children will be served by requiring that they change residences, school systems, circles of friends, activities, and states on a yearly basis.
3. We remand the case to the trial court for further consideration as to the particulars of custody.
Judgment affirmed in part and remanded. All the Justices concur, except Marshall, C. J., Clarke, P. J., and Gregory, J., who dissent.