Grubbs v. Dowse

Felton, Justice,

concurring specially. I concur in the judgment because the petition was not brought on the theory that it would be for the best interest of the child for it to be allowed to visit the father for at least two months during each summer. If the evidence authorizes the court to conclude, in a case based on the best interests of the child, that it would be in the best interest of the child for it to visit the father, where the parties reside great distances apart and the ordinary visitation rights are not practical, the law should be, in my opinion, that the court, on a proper showing, should have the power and authority to change the custody and visitation provisions of the original decree, either on the basis of a change in conditions affecting the practicability of the original visitation or custody rights originally granted, where it is shown that the best interest of the child would be best served by a change, or on the sole interest and right of the parent seeking a partial change in custody rights where it is not shown by convincing proof that the change would result in material and substantial detriment to the child.

The trial court’s judgment in this case concludes with an observation which I think merits quoting, inasmuch as the questions suggested by the trial judge could not all be settled by this court even if it decided to alter some of its decisions where the only question involved is the best interest of the children of divorced parents, and not primarily the interest of the parent seeking a change in the original judgment.

The observation of the trial court is as follows: “The court would like to make the additional observation that the court feels that the rules heretofore laid down by the Appellate Courts of Georgia restricting the varying of a divorce decree are harsh as applied to the present case and that, through the years, varying circumstances which have resulted in families being split and scattered across the country would seem to justify a reappraisal of existing case law so that the interest of the parents *765may be given more consideration without in any way lowering the uppermost requirement that the interests of the child in question always would be given first precedence.

“In the present case the court is of the opinion that the father ought to have the right to have the child visit with him and is willing for the father to have this right on a limited basis in the Valdosta area, but the court also is of the opinion that to grant the prayer set forth under number ‘3’ of the complaint in this case, which would be to provide for the child to visit its father for two months each summer, would be tantamount to rewriting the original decree and, under existing law, this cannot be done. This court must follow the law until such time as it may be changed by statute or appellate decision.”