                                THIRD DIVISION
                               ELLINGTON, P. J.,
                            BETHEL and GOBEIL, 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 16, 2018




In the Court of Appeals of Georgia
 A18A1236. JONES v. AHMAD.

      BETHEL, Judge.

      Leah Jones appeals from the trial court’s denial of her petition for modification

of child custody and the grant of Khalid Ahmad’s counterclaim for modification of

child custody. Jones argues that the trial court abused its discretion when it denied her

petition to modify custody and visitation. Jones also argues that the trial court should

not have accepted the testimony of the guardian ad litem because it was based on an

inadequate investigation. Finally, Jones argues that the trial court erred in regard to

Ahmad’s counterclaim, which was granted in part through a self-executing provision.

For the reasons set forth below, we affirm in part, reverse in part, and remand the case

with direction.
        We first note that Ahmad did not file a brief in this appeal. However, “this does

nothing more than admit [Jones’] statement of facts, which so far as they are

supported by the record, this court may accept as being prima facie true.” CaCoNi

Candy & Gum, Inc. v. Curtis Prods. Co., Inc., 245 Ga. App 592, 593 n.5 (538 SE2d

497) (2000) (citation, punctuation, and emphasis omitted). So viewed, Jones’s brief

asserts, and the record reflects, that Jones and Ahmad are the parents of a minor child

who was born in 2012. Ahmad legitimated his paternity of the child in 2013, and the

parenting plan entered into by the parties at the time provided that Jones and Ahmad

would have joint legal custody of the child, that Jones would have primary physical

custody, and that Ahmad would have visitation rights with the child.

        The child resides with Jones, two siblings, and Jones’ mother. At age 3, the

child was diagnosed with autism spectrum disorder (ASD). Jones determined that

moving the child to Ohio to attend specialized educational programs for children with

ASD would best serve the child’s developmental needs.

        In her petition, she also alleged that she needed to move to Ohio in order to

care for her father. However, during the pendency of Jones’ motion, her father passed

away.



                                            2
      Jones and Ahmad could not come to agreement in regard to the move Jones

proposed. During this time, Jones took the child to Ohio to have him tested for

placement in a particular training program. The child was accepted to the program,

and the school offered to find educational placements in the Cleveland, Ohio area for

his siblings. Ahmad opposed moving the child to Ohio and would not agree to modify

the parties’ custody arrangement to facilitate the move. Ahmad, in turn, located (and

attempted to enroll the child in) an educational program coordinated by Atlanta

Public Schools (APS) designed for children with autism spectrum disorder. The

school performed testing on the child, and it created an individualized education

program for him. The child was later tested for placement in Cobb County schools,

which made a similar placement decision based on the findings previously made by

APS. The child currently receives additional speech therapy outside of school.

      On November 10, 2016, Jones filed to modify the parties’ arrangement in

regard to Ahmad’s parenting time. Ahmad answered on December 20, 2016 and

counterclaimed, seeking an order transferring custody of the child to him should

Jones elect to leave Georgia. The trial court appointed a guardian ad litem to

represent the child’s interests and assist the court in making its custody determination.

Following a series of hearings, and after receiving testimony from the guardian ad

                                           3
litem that the child’s educational needs were being met in the Cobb County schools

and that a move to Ohio would not be in the best interests of the child due to the

difficulties it would pose in ensuring visitation time with Ahmad, the trial court

denied Jones’s petition and granted Ahmad’s counterclaim. This appeal followed.

        1. Jones first argues that the trial court abused its discretion when it denied her

petition to modify custody and visitation. OCGA § 19-9-3 (b) provides, in relevant

part:

        In any case in which a judgment awarding the custody of a child has
        been entered, on the motion of any party . . . that portion of the judgment
        effecting visitation rights between the parties and their child or
        parenting time may be subject to review and modification or alteration
        without the necessity of any showing of a change in any material
        conditions and circumstances of either party or the child, provided that
        the review and modification or alteration shall not be had more often
        than once in each two-year period following the date of entry of the
        judgment.


        [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. Furthermore, a trial court faced with a petition for
        modification of child custody is charged with exercising its discretion
        to determine what is in the child’s best interest. And where there is any



                                             4
      evidence to support the trial court’s ruling, a reviewing court cannot say
      there was an abuse of discretion.


Jackson v. Sanders, 333 Ga. App. 544, 558-59 (5) (773 SE2d 835) (2015)

(punctuation and footnotes omitted).

      (a) Jones argues the trial court placed a disproportionate amount of emphasis

on the child’s relationship with Ahmad and that the trial court refused to consider the

child’s special needs and alternatives that were available that would enable Ahmad

to visit the child even if Jones moved to Ohio. This argument is unavailing.

      As with initial awards of custody, when faced with a petition to modify an

existing custody arrangement, the trial court is charged with determining whether a

change of custody is in the child’s best interests. In so doing, pursuant to OCGA § 19-

9-3 (a) (3), the trial court “may consider any relevant factor, including but not limited

to” the seventeen factors set forth in that Code section. Among those factors are the

“love, affection, bonding, and emotional ties existing between each parent and the

child” as well as recommendations by a court-appointed guardian ad litem. OCGA

§ 19-9-3 (a) (3) (A); (O). In this case, the guardian ad litem recommended the denial

of Jones’ petition, noting that any potential benefits of the educational opportunities

for the child in Ohio were outweighed by the child’s interest in proximity to Ahmad

                                           5
and Ahmad’s extended family. This evidence supported the trial court’s determination

that a modification of the custody arrangement was not in the child’s best interests.

The trial court did not abuse its discretion in denying Jones’ petition.

      (b) Jones also suggests that the trial court should not have accepted the

testimony of the guardian ad litem because it was based on an inadequate

investigation. We disagree.

       Uniform Superior Court Rule 24.9 (3) provides that a guardian ad litem “must

exercise due diligence in the performance of his/her duties.” Jones argues that the

guardian ad litem in this case breached this duty by failing to investigate the child’s

educational situation, including his medical history and school history. Particularly

in light of the child’s diagnosis of ASD, Jones argues that the guardian ad litem

should have conducted a broader examination of the child’s medical history and

interviewed specialists in ASD regarding educational opportunities that would best

serve the child’s needs. However, although a guardian ad litem is empowered by

Uniform Superior Court Rule 24.9 (4) to request the child’s records and to review

other confidential information about the child, nothing in that rule obligates a

guardian ad litem to do so in a given case.



                                          6
      Moreover, the guardian ad litem’s testimony in this case indicates that he

contacted officials from the school in Ohio where Jones sought to enroll the child.

This contact enabled the school to meet with the child in order to perform an

assessment. The guardian ad litem testified that the Ohio school would afford the

child with private and special education particular to children with ASD that would

not be available to him in Georgia schools, although he suggested that the child’s

current placement was among the best schools in Georgia for students with ASD. He

noted that the school the mother planned to enroll the child in Ohio would likely be

a temporary placement and that he would be expected to transition to another program

in two years.

      The guardian ad litem also testified that he had interviewed Jones, Ahmad,

Ahmad’s mother, and the child’s then-current teacher in Cobb County. He noted that

a review of the child’s educational progress showed that the child had met some

goals, was still progressing on others, but that overall the child was doing

“extraordinarily well” and had “made tremendous progress.” He testified about the

bond shared between Ahmad and the child and expressed concerns about how a move

to Ohio would affect that bond. He noted that Ahmad had consistently exercised his



                                         7
visitation rights, and he expressed worry about how the child, particularly in light of

his developmental challenges, would adjust to a transition.

      Based on his investigation, the guardian ad litem recommended to the trial

court that based on the relationship and bond between the child, Ahmad, and

Ahmad’s extended family, the reasonable educational placement for the child in Cobb

County, and the educational progress the child was making in that placement, Jones

and Ahmad should continue their current custody arrangement that preserved

Ahmad’s current level of involvement in the child’s life. He shared his view that a

relocation by Jones to Ohio would not allow Ahmad to do that and would have a

necessarily detrimental impact on the relationship between the child and Ahmad.

During questioning by Jones’ counsel, the guardian ad litem admitted that he had not

interviewed the child’s pediatrician or spoken with teachers at the daycare where he

had attended the prior year, but noted that it was his understanding that the child’s

educational development and forthcoming opportunities were the primary areas of

focus in the proceedings.

      A trial court can consider a report and recommendation of a guardian ad litem

even where it is “aware of the limitations in the thoroughness” of the investigation

behind such report. Ezunu v. Moultrie, 334 Ga. App. 270, 272 (1) (779 SE2d 44)

                                          8
(2015). In such circumstances, so long as “nothing in the record suggests that the trial

court failed to exercise its own judgment regarding what was in the best interests of

the [child,]” this Court will not find an abuse of discretion. Id.

      Here, although the trial court explicitly relied upon the guardian ad litem’s

recommendation in denying Jones’s petition, it issued its own findings of fact in the

case relating to Jones’ tenuous connection with the State of Ohio, Ahmad’s strong

family connections in Georgia, and the child’s performance in his current education

environment. As these findings were supported by the record, including testimony

and records offered by Jones in addition to the testimony given by the guardian ad

litem, this enumeration fails.

      2. Finally, Jones argues that the trial court erred by granting Ahmad’s

counterclaim through a self-executing provision. We agree.

      In this case, the trial court’s order provided that in the event Jones moved

outside the State of Georgia, such move would constitute a substantial change in

circumstances warranting a modification of custody, parenting time, and child

support. The order further provided that should such a move occur, a parenting plan

and child support worksheet attached to the order would go into effect. Such plan,



                                           9
should it be triggered, transfers primary physical custody of the child to Ahmad and

grants Jones specified visitation rights.

      As our Supreme Court has outlined,

      [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. However, a self-executing change in custody/visitation that
      constitutes a material change, i.e., is 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 public policy founded on the best
      interests of the child.


Johnson v. Johnson, 290 Ga. 359, 360 (721 SE2d 92) (2012) (emphasis supplied;

citations and punctuation omitted). Moreover, as the Supreme Court discussed in

Dellinger v. Dellinger,

      self-executing material changes in visitation violate this State’s public
      policy founded on the best interests of a child unless there is evidence
      before the court that one or both parties have committed to a given
      course of action that will be implemented at a given time; the court has
      heard evidence how that course of action will impact upon the best
      interests of the child or children involved; and the provision is carefully
      crafted to address the effects on the offspring of that given course of
      action.


278 Ga. 732, 733-34 (1) (609 SE2d 331) (2004).

                                            10
      In this case, the record does not suggest that Jones has committed to moving

to Ohio or that she has planned to do so at a specified time.1 The record, including

testimony by Jones’ mother that she would move to Cleveland temporarily to assist

Jones if she moved there, merely suggests that Jones planned to make such move only

with the court’s blessing and an accommodating change in the parties’ custody and

visitation arrangement. Accordingly, although the trial court received evidence

regarding how the child’s interests would be served by remaining in Georgia as

opposed to moving to Ohio, the trial court’s order runs afoul of the Dellinger

standard. Cf. Durden v. Anderson, 338 Ga. App. 565, 567 (2) (790 SE2d 818) (2016)

(change of custody provision which altered custody arrangement once the minor child

reached school age was permissible as it coincided “with a planned event that will

occur at a readily identifiable time.” (citation omitted)).

      Moreover, as in Dellinger, the self-executing provision in the trial court’s order

contains no time limitation or expiration date. Id. at 735. As the Supreme Court

further elaborated in Dellinger,

      1
        Jones filed an emergency motion with the trial court during the pendency of
her modification petition requesting leave to enroll the child in school in Ohio. In that
motion, Jones indicated that she had rented an apartment in a suburb of Cleveland,
Ohio in order to preserve her right to enroll the child in the school. The record does
not reflect any specific ruling on this motion by the trial court.

                                           11
      [i]t is the factual situation existing at the time of the material change in
      visitation that determines whether a change is warranted, not the factual
      situation at the time of the [order]. However, the automatic change in
      visitation provision in this case contains no language limiting its
      application at or near the time of the [order]. In fact, the challenged
      provision lacks any expiration date at all. As drafted the provision would
      authorize implementation of the self-executing change of visitation at
      any time, even though the change could be triggered months or even
      years in the future. This material change in the [child’s] visitation would
      be accomplished automatically and without any regard to the
      circumstances existing in the [child’s life] at the time of the change. As
      such, this provision 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.




Id. at 735 (citations omitted).

      The trial court’s order in this case suffers from the same infirmity. In one

breath, the trial court acknowledges that as the child ages, his educational programs

and opportunities will change. In the next, it orders that a change in his custody and

his parents’ rights of visitation may be triggered at an unspecified future time without

any additional judicial oversight. This incongruence, and the order’s failure to



                                          12
account for how the child’s needs, interests, and circumstances will evolve over time,

is precisely the type of ill that Dellinger and its progeny seek to prevent.

      Accordingly, the self-executing change in custody and visitation should not

have been included in the trial court’s order in this case.

      It does not follow, however, that the entire judgment must be reversed
      and the case remanded for a rehearing. [W]e reverse the judgment in part
      only and remand the case to the trial court with direction that the
      self-executing . . . provision of the judgment be stricken. The judgment
      is otherwise affirmed. Any future change in the [custody and visitation
      arrangement] will be subject to judicial scrutiny into the [child’s] best
      interests as provided by law.


Ezunu, 334 Ga. App. at 273 (2) (citations omitted).

      Judgment affirmed in part and reversed in part, and case remanded with

direction. Ellington, P. J., and Gobeil, J., concur.




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