As divorcing parents seek ways to reduce return trips to court to modify divorce terms, many have turned to employing self-executing custody and visitation modifications in their mediation agreements and parenting plans. Self-executing modifications become effective based on the occurrence of triggering future events. As the Johnson case shows, however, the Georgia Supreme Court does not look favorably upon such provisions.

In Johnson, the parents agreed on a parenting plan and incorporated it into the final judgment and decree of divorce. The judgment granted the mother primary physical custody and granted the father supervised visitation when the child spent the night in the father’s care. Nothing unusual here.

The Johnsons’ parenting plan required overnight visitation to be supervised by, “A reasonable adult approved by a therapist treating the child until such time as the therapist determined that supervision is not necessary.”

As mediators we know that among quarreling parents, “reasonable” is a very difficult concept to define. The stipulation appeared logical, however, in that the therapist was already involved with the child and therapy would be continuing. The parenting plan provided further that the therapist, “… shall have the authority to determine how supervised visitation should be phased out over time and when supervision should end.”

Based on the therapist’s position to effectively evaluate the child’s behavior over time, this provision appeared to be an acceptable way for the parents to resolve an ongoing problem without the cost and hassle of going back to court for a modification. Both parents agreed that the therapist would serve as the neutral decision maker regarding if and when supervised visitation should end. So looking at the Johnson agreement:

- It provided for a self-executing change of visitation.

- The change was based on the occurrence of an undetermined future event.

- The child’s therapist would determine when the change occurred.

- At the happening of the event, father’s visitation would change from supervised to unsupervised.

Everyone in the case – the parties, the therapist, and the trial court – agreed to the terms of the resolution. Unfortunately, the Supreme Court did not. What happened? Let’s examine the legal logic.

First, the Supreme Court clarified the applicable current law: “A self-executing change of custody/visitation is acceptable, as long as it poses no conflict with our law’s emphasis on the best interests of the child.”

Second, the Court stated when there would be a conflict: “A self-executing change in custody/visitation that constitutes a material change, one that is allowable only upon a determination that it is in the best interests of the child at the time of the change, generally violates Georgia’s policy founded on the best interests of the child.”

Third, the Court expressly stated that, “A requirement that a parent’s visitation be supervised is a provision expressly meant for the child’s best welfare,” citing Sigal v. Sigal, 289 Ga. 814 (2011).

Lastly, the Supreme Court declared that only the trial court – and not a therapist – has the authority to decide when a custody or visitation modification is in the child’s best interest:

Armed with the knowledge from this case, Georgia mediators will know the legal limitations on self-executing provisions in divorces and can assist the parties in generating better solutions for supervised visitation. Supervised visitation is a complicated arrangement. Mediators should explore with the parents whether it’s really necessary, or whether it’s really an imposition of an emotional penalty by one parent against the other.

Additional insights from Psychologist Kim Oppenheimer, Ph.D.:

Dr. Oppenheimer is in private practice with Atlanta Psych Consultants, LLC. She has over 25 years experience working with couples and families, including those involved in high conflict custody disputes. She provides psychotherapy, performs custody and parental fitness evaluations, and parent coordination. I asked Dr. Oppenheimer for her thoughts on the Johnson ruling and on what mediators could discuss with parties when confronted with similar situations. She provided the following insights:

1. In Johnson, it is unclear why supervised visitation was necessary as part of the parenting plan for the 12-year-old child. Physical and/or sexual abuse, substance abuse, and severe psychopathology are the most common reasons for supervised visitation, and there did not appear to be any evidence or allegations of those issues in Johnson.

2. The child’s therapist cannot be in a dual relationship of providing treatment to the daughter and evaluating the father for potentially abusing the daughter. This is a conflict of interest that will most likely lead the father to suspect that the therapist is biased against him if he/she recommends that the court continue supervised visitation, and also lead to the daughter feeling betrayed if the therapist suggests terminating supervision. Obviously, this opens the door for litigation and appeal.

3. One solution to the therapist’s potential conflict of interest is to ask the court to appoint a custody evaluator. A custody evaluator is a neutral party who evaluates the mother, father, child(ren), and any other individuals living in the home, conducts psychological testing, collects information from collateral sources, and submits the findings along with recommendations to the court.

4. The impartiality of the custody evaluator allows the therapist to advocate for and support the child while maintaining the boundaries necessary for an unbiased investigation of any allegations of abuse. Thus, appointing a neutral evaluator avoids the problem identified in Johnson of delegating decision-making authority to a third party; the custody evaluator’s role is only to submit findings and recommendations to the court to use at its discretion.

Special Note: The Georgia Supreme Court’s pilot program for discretionary review of domestic has been made permanent. Effective July 1, 2011, the Pilot Project for discretionary reviews of final judgment and decrees of divorces was replaced by Georgia Supreme Court Rule 34 (4), which provides:

The massive numbers of domestic cases handled through the trial courts remain subject to further judicial inquiry on appeal. BeNeutral readers can remain informed of current domestic case law reviewed by the Georgia Supreme Court.