Hardin v. Hardin

FIFTH DIVISION
PHIPPS, P. J.,
DILLARD and PETERSON, JJ.

NOTICE: Motions for reconsideration must be
physically received in our clerk’s office within ten
days of the date of decision to be deemed timely filed.
http://www.gaappeals.us/rules

August 18, 2016

In the Court of Appeals of Georgia
A16A1210. HARDIN v. HARDIN.

PETERSON, Judge.

Douglas Andrew Hardin (the “father”) appeals the trial court’s order permitting

Rita Hardin a/k/a Rita Barbagallo (the “mother”) to resume visitation with her

youngest son in the form of weekly therapeutic sessions. He argues the trial court

erred by entering a self-executing change of visitation, by failing to include a

parenting plan with the order, and by failing to consider the best interests of the child.

Because we find the court’s order to be a self-executing change of visitation of the

sort prohibited under Georgia law, we vacate the order.

“A trial court’s decision regarding a change in custody/visitation will be upheld

on appeal unless it is shown that the court clearly abused its discretion. And where

there is any evidence to support the trial court’s ruling, a reviewing court cannot say
there was an abuse of discretion.” Ezunu v. Moultrie, 334 Ga. App. 270, 272 (779

SE2d 44) (2015) (punctuation and citation omitted).

So viewed, the record shows the father filed a motion to modify custody and

visitation, seeking sole physical custody and limitation of the mother’s visitation in

accordance with the recommendation of a guardian ad litem. The mother’s regular

visitation privileges with her children were later temporarily suspended by consent

of the parties.1 Before deciding the father’s motion, the trial court elected to gather

more information, including a professional evaluation. In late 2014, the professional

evaluator submitted his report, in which he noted significant concerns about the

mother’s mental health and concluded that he did not believe it to be in the best

interests of the children to permit visitation without the mother first receiving

substantial treatment. The children also submitted statements to the court that they did

not wish to have visitation or counseling with their mother.

In May 2015, the court held a hearing acknowledging the report and issued a

final ruling. Although no change in the mother’s condition is apparent from the

record, the trial court entered an order on December 17, 2015 permitting the mother

1
The consent order between the parties was entered in 2012, and the mother
had not had visitation with the children since.

2
to resume visitation with her youngest son2 in the form of weekly therapeutic sessions

after she completed eight weeks of counseling on her own “for the following two

months.” The trial court order provided that

[t]he mental health professional shall be provided the report of [the
professional evaluator], and at the conclusion of the two months shall
make certain recommendations as to any further treatment and other
terms and conditions regarding mental health which shall be followed
by [the mother]. Upon a good faith completion of eight weeks, and a
report to this Court which evidences completion of this therapy and [the
mother]’s progress, [the mother] shall be entitled to initiate visitation
with the younger child . . . by engaging a child psychologist to supervise
and assist in weekly therapeutic sessions with [the younger child]. This
shall continue until the child reaches the age of majority.

The court stated that it believed it to be in the “long-term best interest of the child”

to attempt to repair the child’s relationship with the mother. The father contends, and

the mother does not dispute, that on December 24, 2015 — just seven days after entry

of the trial court’s final order — the mother’s therapist3 submitted a certificate of

2
The trial court acknowledged the older child turned 18 in May 2015.
3
The father complains that the mother’s therapist who submitted the certificate
of completion also served as her expert witness.

3
completion, though this document does not appear in the record before us. This

appeal followed.

1. The father argues that the trial court erred by entering an impermissibly self-

executing order that provides for an automatic change of visitation. We agree.

“Visitation privileges are, of course, part of custody.” Wrightson v. Wrightson,

266 Ga. 493, 496 (3) (467 SE2d 578) (1996) (citation and punctuation omitted).

Self-executing change of custody provisions allow for an “automatic”
change in custody based on a future event without any additional
judicial scrutiny. Our Supreme Court has held that “any self-executing
change of custody provision that fails to give paramount import to the
child’s best interests in a change of custody as between parents must be
stricken as violative of Georgia public policy.”

Lester v. Boles, 335 Ga. App. 891, 892 (1) (782 SE2d 53) (2016) (citing Dellinger v.

Dellinger, 278 Ga. 732, 733 (1) (609 SE2d 331) (2004)). But not all self-executing

provisions are invalid. Rather, we must closely examine the nature of any such

provision in determining whether it fails “to give paramount import to the child’s best

interests[.]” Id.

In Weaver v. Jones, 260 Ga. 493 (396 SE2d 890) (1990), and Pearce v. Pearce,

244 Ga. 69 (257 SE2d 904) (1979), our Supreme Court upheld automatic custody

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change provisions that contemplated that an older child, upon reaching age 14, may

choose the parent with whom the child wishes to reside. See Scott v. Scott, 276 Ga.

372, 373 (578 SE2d 876) (2003) (discussing Weaver and Pearce). And in Lester, we

upheld a self-executing provision that altered custody when the child began first

grade, noting that the provision was not invalid because the change in custody was

not conditional upon an event that may never occur and was “not an arbitrary change

that may or may not affect the child’s best interests at some unknown date[.]” See

Lester, 335 Ga. App. at 893 (1).

But other self-executing provisions that create an automatic change of custody

based solely on a custodial parent’s relocation within the country or remarriage, or

a counselor’s determination of readiness — without regard to the child’s best interests

at the time of the change — have been rejected. See Johnson v. Johnson, 290 Ga. 359,

359-60 (721 SE2d 92) (2012) (reversing trial court judgment with direction that the

trial court strike the self-executing provision of the decree that allowed termination

of supervised overnight visits to occur based on a counselor’s determination of

readiness); Dellinger, 278 Ga. at 734-36 (1) (609 SE2d 331) (2004) (reversing trial

court judgment with direction that the trial court strike the self-executing provision

of the decree that altered custody if the mother moved); Scott v. Scott, 276 Ga. 372,

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376 (578 SE2d 876) (2003) (“Remarriage and relocation directly affect a child but

they do not automatically warrant a change in custody.”). “It is the trial court’s

responsibility to determine whether the evidence is such that a modification or

suspension of custody/visitation privileges is warranted, and the responsibility for

making that decision cannot be delegated to another, no matter the degree of the

delegatee’s expertise or familiarity with the case.” Wrightson, 266 Ga. at 496 (3)

(citation and punctuation omitted).

The question for this Court to resolve, then, is whether the self-executing

provision challenged here is the sort prohibited under Georgia law. A review of the

caselaw regarding prohibited self-executing provisions shows that they can generally

be summarized as having one of two critical flaws. First, self-executing provisions

that rely on a third party’s future exercise of discretion essentially delegate the trial

court’s judgment to that third party. See, e.g., Johnson, 290 Ga. at 359-60. And,

second, self-executing provisions that execute at some uncertain date well into the

future are not permitted because the trial court creating those provisions cannot know

at the time of their creation what disposition at that future date would serve the best

interests of the child; the passage of time (and thus, likelihood of changed

circumstances) is just too great. See Dellinger, 278 Ga. at 735 (automatic change in

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visitation without any regard to the circumstances existing in the children’s lives at

the time of the change is “utterly devoid of the flexibility necessary to adapt to the

unique variables that arise in every case, variables that must be assessed in order to

determine what serves the best interests and welfare of a child”).

The mother argues that the challenged provision here is akin to that examined

in Lester because there appears to be a date determinative for the change in visitation

— her completion of eight weeks.4 And she argues that the trial court considered the

best interests of the child when it entered the order, as expressly acknowledged

therein, noting that an attempt to repair the child’s relationship with the mother would

be in the “long-term best interest of the child[.]” But as the mother points out in her

appellate brief, “[t]he true potential vice in this sort of self-executing change, as

Father and the decided cases envisions that evil, is delegation of judgment to

another.” Indeed, we have instructed trial courts to strike such provisions in those

cases in which the trial court has delegated its authority to determine the timing of

4
The provision could also be interpreted as the trial court retaining jurisdiction
to review the mother’s progress as reported to it and determine whether it is sufficient
to trigger visitation. However, that interpretation is not available to us given the
court’s designation of the order as “final,” because the trial court, in so designating
its order, demonstrated its intent to divest itself of jurisdiction to do any further
analysis of the mother’s compliance with its order.

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custody transitions or modifications to a counselor. See Wrightson, 266 Ga. at 495-96

(3), Johnson, 290 Ga. at 359-60. That is essentially what has happened here.

Under the terms of the order at issue, the counselor is to “make certain

recommendations as to any further treatment and other terms and conditions

regarding mental health which shall be followed by [the mother].” Upon a “good faith

completion of eight weeks” of therapy, a report is to be made to the trial court (it is

unclear by whom) evidencing completion of this therapy and the mother’s progress.

Once these events have occurred, the mother is entitled to initiate visitation with the

child in the form of weekly therapy sessions. Under the trial court’s order, this

transition in custody is automatic, and although it is unclear precisely who has the

ultimate responsibility for reviewing the report to determine whether it sufficiently

evidences the mother’s “progress” and completion of the required therapy, it is clear

that it is not the court. This is troubling for precisely the reason the father argues in

his appeal — the mother may not actually have made “progress” in her therapy in the

sense that the trial court intended, or she may not be complying with the counselor’s

additional treatment recommendations or the rest of the court’s order. Indeed, the

mother attempted to resume visitation almost immediately following entry of the

order, despite not having complied with its instruction that she complete eight weeks

8
of therapy “for the following two months.”5 This makes the event triggering the

automatic change in visitation arbitrary, with “only a tangential connection” to the

child’s best interests. Lester, 335 Ga. App. at 893 (1). Thus, the order lacks “the

flexibility needed to adapt to the unique variables that must be assessed in order to

determine what serves the best interests and welfare of a child.” Lester, 335 Ga. App.

at 892-93 (1) (citation and punctuation omitted). For this reason, we find that this

provision in the trial court’s order constitutes an abuse of discretion, and accordingly,

we vacate the order and remand the case to the trial court to revisit the issue and

provide a new order on the father’s motion consistent with this opinion.

2. Because of our holding in Division 1, we need not address the father’s other

enumerations of error.

Judgment vacated and case remanded. Phipps, P. J., and Dillard, J., concur.

5
The mother argues that she was able to anticipate the amount of court-ordered
therapy and completed it in advance, but points to nothing in the record supporting
her argument.

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