Custody. DeKalb Superior Court. Before Judge Seeliger.
Knight & Mitchell, Jennifer L. Knight, for appellant.
Prince A. Brumfield, Jr., for appellee.
BOGGS, Judge. Branch, J., concurs. Barnes, P. J., concurs in judgment only.
Following the January 2005 divorce of Venus Morgan and David Fordham, Morgan was awarded sole physical custody of the couple's children and jointly shared legal custody of the children with Fordham. In 2013, the trial court determined that it was in the children's best interest to give Fordham physical custody of the children, and [328 Ga.App. 228] Morgan appeals. Because it appears from the trial court's order that it modified custody based upon an erroneous theory of law, we vacate the trial court's order and remand this case to the trial court for consideration of all factors required to modify custody.
On February 22, 2012, Fordham filed a petition for modification of custody in which he alleged a substantial change in circumstances
and specifically contended that Morgan used corporal punishment inappropriately, had put the eldest minor child out of the home on several occasions, and that Morgan's new husband was incarcerated and would be residing in the same home with the children upon his release. On December 5, 2012, Fordham filed a motion for contempt and amended his custody modification petition. Fordham complained that Morgan was in contempt of the divorce decree in that she had wilfully denied him visitation with his children, and also alleged that Morgan had medically neglected the oldest child.
On April 22, 2013, the trial court held a hearing and afterward entered an order stating: " After considering the evidence, including the guardian ad litem's report, and the law, this Court finds that it is in the best interest of the parties' minor children for Mr. Fordham to have sole physical custody." The trial court also ordered Morgan to pay child support, and further ordered that the children were not to visit Morgan's current husband in prison, or upon his release " be around this man at any time, unless this Court modifies this provision in an order." Nowhere in the trial court's order, however, does it refer to the legal requirement for material changes in conditions and circumstances substantially affecting the interest and welfare of the child. See Todd v. Casciano, 256 Ga.App. 631, 632-633 (1) (569 S.E.2d 566) (2002); OCGA § 19-9-3 (b). Nor does it make any factual findings regarding such material changes.
A petition to change child custody should be granted only if the trial court finds that there has been a material change of condition affecting the welfare of the child since the last custody award. If there has been such a change, then the court should base its new custody decision on the best interest of the child. If the record contains any reasonable evidence to support the trial judge's decision on a petition to change custody, it will be affirmed on appeal. Although trial courts have wide discretion in change of custody proceedings, that discretion is not without limits.
[328 Ga.App. 229] (Citations and footnotes omitted.) Durham v. Gipson, 261 Ga.App. 602, 605 (1) (583 S.E.2d 254) (2003).
Although Morgan complains on appeal that the trial court did not make any factual findings supporting the change in custody, unless requested by either party, the judge is not required to include factual findings in its order, and it does not appear that either Morgan or Fordham asked for such findings. See Weickert v. Weickert, 268 Ga.App. 624, 629 (2) (602 S.E.2d 337) (2004); OCGA § 19-9-3 (a) (8) (" If requested by any party on or before the close of evidence in a contested hearing, the permanent court order awarding child custody shall set forth specific findings of fact as to the basis for the judge's decision in making an award of custody including any ...