The effect of the Georgia child custody intrastate jurisdiction act of 1978 on a change of custody and modification of visitation after Bodney v. Bodney, 277 Ga. 445, (2003).
No complaint seeking a change of legal custody or visitation rights may be made as a counterclaim nor in any other manner in response to a petition for writ of habeas corpus, nor in response to any other action or motion seeking to enforce a child custody order. The use of a complaint in the nature of habeas corpus seeking a change in child custody is prohibited. However, it is proper for a petition to state a claim for habeas corpus relief where the petitioner who is the legal custodian does not seek a change of custody but merely the return of the children. Upon the death of either parent, the survivor is entitled to custody of the child but the judge upon petition may exercise discretion as to the custody of the child looking solely to the child's interests and welfare. The act only applies when there is legal custody. OCGA 19-9-23 states clearly that after a court has determined who is to be the legal custodian of a child any complaint seeking to obtain a change in legal custody of the child shall be brought as a separate action in the county of residence of the legal custodian of the child. In Bodney v. Bodney, 277 Ga. 445, 588 S.E.2d 728 (2003) reversing Bodne v. Bodne, 257 Ga. App. 761, 572 S.E.2d 95 (2002), the Georgia Supreme Court decision provides that in all relocation cases, as well as in all child custody cases, the trial court 1) must apply the best interests of the child test 2) cannot apply a bright line test, i.e. the rebuttable presumption that the custodial parent has a prima facie right to retain custody. This means that any change a custody case, the initial custody award will not always control after any new and material changes in circumstances that affects the child is considered. This reverses any Georgia case that presumes the custodial parent has a prima facie right to retain custody.Contact a Dallas Georgia lawyer today to discuss your modification action.