Bodne v. Bodne , 277 Ga. 445 ( 2003 )

Sears, Presiding Justice,

concurring.

I completely concur with the majority opinion. I write separately to emphasize that, in relocation disputes, the dissent’s focus on the custodial parent’s “new family unit” and its deference to the relocation desires of the custodial parent overlooks the importance of the best interests of the child of the divorced parents, of the child’s relationship with the non-custodial parent, and of the interests of the larger family created by divorce.

The dissent would subordinate the foregoing interests to the custodial parent’s decisions regarding the new family unit, including where it will reside, except in the “ ‘most extreme circumstances.’ ”¹ For this conclusion, the dissent relies, in part, on an Oklahoma Supreme Court case, Kaiser v. Kaiser,1 ² and Kaiser, in turn, relied on an article³ that concludes that a child’s frequency of contact with a non-custodial parent is not related to a child’s best interests.⁴ As I recently noted, the conclusion of that article is “at odds with the stated public policy of this State.”⁵ The upshot of the dissent’s focus on the “new family unit” headed by the custodial parent would be to make the non-custodial parent (most often the father) an outsider and to place the custodial parent’s interests above those of the child. Moreover, this “new-family-unit” approach ignores the fact that a divorce creates a larger, interconnected “binuclear family,” consisting of one household headed by the custodial parent and another household headed by the non-custodial parent, with the child being a part of both.⁶ Instead of recognizing the significance of this “binuclear family” to the child, the dissent compares the most critical aspect of a child’s life - his family - to “Humpty Dumpty” and states that because the child’s family, like Humpty Dumpty, cannot be put back together again, the new family unit must take priority.⁷ Contrary to the dissent’s position, I believe that a child’s family, though altered by divorce, has the potential to coalesce and meld into a viable “binuclear family” and to act together to further the best interests of the child. To facilitate this possibility, the paramount issue in relocation disputes should be whether the relocation is or is not in the best interests of the child. In this complex equation, a child’s relationship with the non-custodial parent; his ties to local schools and friends; the child’s age; the stress and instability of relocation and the corresponding benefits of consistency and stability for the child; the interests of the entire binuclear family; the custodial parent’s reason for relocating; the dynamics of the custodial parent’s new family unit; and any other relevant factors may be taken into consideration.⁸

Because I conclude that the majority opinion’s focus on the best interests of the child has the greatest potential to maximize the well-being of the child, and because I conclude that the trial court did not abuse its discretion in concluding that the relocation was a substantial change that affected the welfare of the children and justified a modification of custody, I concur in the majority opinion.

1 Dissent at 450, quoting Kaiser v. Kaiser, 23 P3d 278, 285 (Okla. 2001).

2 23 P3d 278.

3 See Kaiser, 23 P3d at 284, n. 2, citing Judith S. Wallerstein & Tony J. Tanke, To Move or Not To Move: Psychological and Legal Considerations in the Relocation of Children Following Divorce, 30 Fam. L.Q. 305 (1996).

4 See Wallerstein and Tanke at 312.

5 Scott v. Scott, 276 Ga. 372, 381 (578 SE2d 876) (2003) (Sears, P. J., dissenting).

6 See Marion Gindes, The Psychological Effects of Relocation for Children of Divorce, 15 J. Am. Acad. Matrim. Law 119, 121 (1998). The binuclear family can include stepparents, step-siblings, parents, siblings, half siblings, and grandparents.

7 Dissent at 452.

8 See Scott, 276 Ga. at 379 (Sears, P. J., dissenting).