CLOSING BY GUARDIAN AD LITEM:

BY MS. GERALD:

Judge, there are a few people that I spoke

to as part of my investigation who have not been called as

witnesses today. They were primarily people that I was

intending to discover what the actual relationship and the

nature of the relationship was between the father and the

children. My perception of this case from the beginning

has been that the major issue needed to be is there a

change of condition that existed with respect to the

father that would authorize a change of custody to the

mother. And therefore, that's where the focus of my

investigation was.


I did speak extensively with the parent

coordinator.  I spoke to acquaintances of the father who

have been witnesses to him being with the children in his

home and at public events and I was trying to establish if

that relationship did in fact exist and that it was a good

and important relationship. And I think that even though

those people weren't called, just from the witnesses that

were called here, The Court has seen the involvement of

the father and the father's relations, the father's new

wife, the father's parents in the children's lives and

understand that that relationship does exist and that it

is an important relationship.

I haven't found anything that either party

has alleged to have occurred that I think would rise to

the level of any kind of change of condition that would

authorize a change in custody.

I'm going to go ahead and burn my bridges

right now and tell you that I think that the behavior of

both the parents in this case has been ridiculous, that,

you know, he's calling the police, he's trying to get

TPOs, she herself said she put in for a TPO.

I believe it's possible she didn't pick up the check so

that she could try and call him in on child support.

That may be unfair, but that's just my perception of

how they've been doing this.

 

I think he has been trying to control some

of the things that are going on in her life by trying to

manipulate a lot of this behavior and by bringing the

police into it and having himself portrayed as a victim. [Control=Abuse]

I think she's done her best to try and remove him from the

children's lives. [PAS] And I think that's evidenced by the

fact that even though it was not brought up today and all

the documents were introduced at her deposition, the

documents on which she did not list him as a contact were

introduced and -- and have been viewed by both parties and

by myself at her deposition.

If there was a way to take the children away

from these parents and put both of these parents in time

out until they learned how to communicate with each other

and get along for the purpose of these children, I would

see it done.  I mean, this is crazy.  Both of them are

egocentric.  They're both concerned about how this affects

me, how this makes me angry, how this upsets me.

These children are 3 years old and 5 years old and these people

are going to have to talk to each other.

I mean, I've seen these cooperative parenting agreements.

They talk about let's communicate through e-mail, let's only

call my home, let's only do this, let's only do that.  So

obviously there was a lot of crap going back and forth

regarding telephone between the two parties or these

agreements wouldn't have been reached.

But the fact of it is, you people are going

to have to communicate with each other, because these

children are young and they've got -- I mean, the youngest

one's got 15 years till he graduates from high school.

Here we've got people testifying on the

stand who spend every day with this child that he tensed

when here comes mom and stepmom.  This is a 5-year-old

child and you people are doing this to this child.

I'm sorry, that's not my...But that's where we are.

This is about them.  This is not about these kids.

This is about he did this to me, he does that to me.

These children love this stepmother. I've been in that home,

I've spoken to them. They don't call her my stepmother, they don't

call her my mother, they call her Melissa. But Melissa is

an ingrained part of their life. They accept her.

They love her. I'm sure this bother's their mother immensely,

but they -- they love her, too. Nothing's ever going to

take her place. And I think she understands that and

understands we've got all these parties to work with.

They've just got to put this behind them.

My recommendation would be, first of all,

there hasn't been anything that has occurred here that

would justify a modification of any kind.

But I think the parties themselves need to get some counseling and

work through this anger and hostility and power-hungry fever

that they have from the divorce in order to facilitate

communication with these children. I do think there are a few

things that were entered to in the cooperative parenting agreements

that would be better incorporated into an order of The Court.

First of all, I would say that -- that they made an agreement

that the parents would be listed as the emergency contacts.

I think it's ridiculous that they had to reach that in a parenting

agreement. Obviously, they've got two parents, they live

in the Atlanta area, they have joint custody. There

should have never been an issue about both parents not

being listed on the documents. [It's all her fault. Like this

is an earth shattering issue.] But, that being said, that

certainly from the future...

And, apparently, since it

was entered into an agreement, that has been done.

And I congratulate the parties on following through with that.

There were a lot of issues in the

cooperative parenting agreements regarding telephone

calls.

Like I said, obviously, some things had gone on

between them that I'm -- I'm referring now to telephone calls with the

children. And I'm going to guess that there were an awful lot of

telephone calls going back and forth. My suspicion is that in that

situation it was probably the mother keeping tag on the boys all the time.

[More mom bashing, your honor, it's PAS! Mom an unconscious alienator. Looky here she's trying to thwart dad's relationship with the children.]

I don't think it's 'necessary on a visitation weekend for

the parents to be calling the children. The children are only

with the other parent for less than a 48-hour period

and they don't need to be calling the children during that

period of time.  If they're going to be with the parties

longer than that, if they're going to be with them for a

week or for the summer or for two weeks or on a trip, then
 
I think reasonable phone visitation is warranted.

I think it should be done before 8:00 o'clock because these kids

are very young, but that, of course, could change as they

get older.

They had some things in cooperative parenting about walking the

children to the front door. Again, without evidence, I'm going

to guess they were dropping the kids out in the driveway because

they didn't want to see the other parent and this has got to stop.

These children are made up of two people. These children

love both parties. feel that tension. These children see that tension,

they They're all going to end up with stomach ailments and nervous

disorders and in counseling and, you know, shooting people at high

school if you people do not get along better for the -- for the benefit

of these kids.  You have got to grow up and get this animosity you feel

toward each other behind you and move on.  [Oh how melodramatic can this GAL get?  The reason people get divorced is because they don't get along.  Studies show that it doesn't matter if conflicted couples stay married or get divorced,the outcome is the same.]

Some other things that were in the parenting -- cooperative parenting

agreements that I think should be incorporated, that they would both be

able to go to registration, that they would both be able to go to the

first day of school. What's going to happen in the future

is that they should both be allowed to go to all the

sporting events and their games and their programs at

school and their pack meetings and whatever it is they get

involved in. Both parents need to be there and both of

you need to be able to get along and not make the children

feel like if they go stand by one or the other that they

they're going to tick off the other parent and they're going

to send them looks and make them feel bad because a

5-year-old boy who is at school and is tense is proof that

it is happening and you have got to nip it in the bud.

As far as the school recommending that school functions

and field trips be rotated, I think that's a marvelous idea.

Maybe it turns out you wanted to go to the petting zoo and

it wasn't your turn. You had to come to the Valentine Brunch.

Well, tough. Y'all can lump it for yourselves. Stop being so

concerned with your own selves and be concerned with the children.

I think that would be a good thing to rotate the school functions

and the field trips and to incorporate that into The

Court's order.

As far as her having a week in the summer. I

think that's reasonable for her to want to have a week in

the summer. Perhaps she would want to give up if she has

spring break that week that year, she may want to give

that up in return for a week in the summer.

As far as having the children spend the night with other

people, I would recommend that if the parent is going to

be out of town for two nights or more, that they give the

other parent the right of first refusal to keep the children.

I mean, one night overnight could get ridiculous always

trying to move the children back and forth, you know.

I think that the agreements they reached as to Thanksgiving

and Christmas, Labor Day and Memorial Day and all the

other three-day weekends that'll extend the weekend to

the visiting -- to the parent that has custody or

visitation during that period of time are both

reasonable. I think that effectively what would happen if

there was a change in custody in favor of the mom is that

it would give her the opportunity to almost completely

eradicate the father from the children's lives like I

think she's systematically been trying to do.

What we would be doing if we did that is essentially rewarding her

by giving her what she wants for trying to do that. [PAS again. Your

honor, she's an evil alienating momster, and will no doubt 'eradicate'

dad from the children's lives if given the opportunity. There is no proof

that mom has done this or will do this in the future. Let's stay focused here. 

This isn't about dad: it's about moving in order to get a superior paying job.]

On the other hand, there has been absolutely no evidence from

the father that there needs to be any change away from the

mother. I think that he hasn't done anything to show that

she's not a good parent, that she's not taking care of

them physically. [No mention of 'emotionally' because the

GAL has already accused her of subconscious alienation.]

They're carping back and forth about doing this and doing

that, and they both got to get beyond that.

But as far as their physical needs, I haven't heard

anything that says she's not doing...I don't see

anything here that justifies a modification of custody.

[GAL covering her tracks...after slyly destroying mom's

character before a PAS leaning judge, a change in custody

is exactly what he has in mind.]

I do see some things that need to be worked out and maybe

the order needs to be tweaked. But the number one thing

that needs to happen is that these people need to get over

it and be a good parent to these children, recognize that

they've got another parent, that they may have

stepparents, that they may have stepgrandparents and half-

siblings and whatever and be glad that there are just more

people on this planet to love those children because

that's what those children need. And you people are going

to have to talk to each other about it. And that's what

my recommendation is and that's what -- what I want to

say.

THE COURT:

Mr. Auld, your turn.

CLOSING ARGUMENT ON BEHALF OF DEFENDANT:

BY MR. AULD:

There was a divorce, there are children, and

there's tension. That's regularly part of what happens

and this Court sees it. all the time.

And with the passion that Ms. Gerald communicated to The

Court, I -- I believe

Douglas A. Hardin Plaintiff,

vs

Rita B. Hardin Defendant

Superior Court Docket No. 03-A-10856-3

Juvenile Court 03-5581-2 03-5582-2

ORDER

    The above-styled matter having come before the Court on

April 13, 2004, Plaintiff was represented by Counsel, D. Warren

Auld and Defendant was represented by Counsel, John C. Tyler.

The Court heard testimony from the parties and from witnesses,

reviewed evidence submitted and heard argument of counsel.

FINDINGS OF FACT

   Plaintiff is the Father and Defendant is the Mother of the

minor children ____________ ,(male) born  and

_________________ (male) born June 13, 1999.

    On June I, 2001, the parties were divorced pursuant to the

FINAL JUDGMENT AND DECREE, Rita B. Hardin v.Douqlas A. Hardin,

CAFN 00-7513-5, Superior Court DeKalb County, Georgia. On July

2, 2003, this Court entered its Final Order in a custody

modification action Rita B. Hardin v. Douqlas A. Hardin,

Juvenile Court Docket Nos. 02-5509-2, 025510-2; Superior Court

CAFN 02-A-09896-3, Gwinnett County, Georgia. On November 19,

2003, this Court entered its Order in a contempt action, Douqlas

A. Hardin v. Rita B. Hardin, Juvenile Court Docket Nos. 03-5196-

2, 3-5197-2; Superior Court CAFN 03-A-10340-3, Gwinnett County,

Georgia, in which visitation was modified.

     On September 26, 2003 Plaintiff filed his Petition For

Modification of Custody, Douqlas A. Hardin v. Rita B. Hardin

Superior Court CAFN 03-A10856-3, Juvenile Court CAFN 03-5581-2 &

03-5582-2 Gwinnett County, Georgia.  The matter was transferred

to Juvenile Court pursuant to O.C.G.A. 15-11-30.1 for

investigation and determination.  Defendant was served on October

11, 2003 and Defendant filed her Answer and Counterclaim on

November 10, 2003.

     In the Final Judgment and Decree, Rita B. Hardin v.

Douqlas A. Hardin, CAFN 00-7513-5, Superior Court DeKalb County,

Georgia a shared custody arrangement was established. It was held

that neither parent should be the primary custodian, that each

parent has a prima facie right to custody and neither parent is

to be favored over the other. In all subsequent Orders of this

Court, Rita B. Hardin v. Douglas A. Hardin, Juvenile Court

Docket Nos. 02-5509-2, 025510-2; Superior Court CAFN 02-A-09896-

3, and Douqlas A. Hardin v. Rita B. Hardin, Juvenile Court Docket

Nos. 03-5196-2, 3-5197-2; this joint custody arrangement was

was affirmed and continued.


    In Lewis v. Lewis, 252 -Ga. App. 539 (2001), the Court held

that in a shared custody arrangement, a decision to change

custody must be based on evidence of a positive or adverse change

in the circumstances of either ... parent, or any change in the

circumstances ...substantially affecting the welfare and best

interests of the child. Where a change in conditions, in this

case the move, has resulted in an unwieldy or untenable custody

arrangement and threatens the physical custody arrangement so as

either to destroy it or to make it unworkable there is a change

of condition which substantially affects the welfare of the

children.

    In Lewis, the Court held that in considering a modification.

in a joint physical custody case, such as this one, neither

parent is to be favored nor does either parent have a prima facie

right to custody.  The Court is required to consider only the

best interests of the children in crafting a new custody

arrangement. In Bodne v. Bodne, 257 Ga. App. 761 (2002), the

Court held that when exercising its discretion to modify custody

in relocation cases, as in all child custody cases, the trial

court must consider the best interest of the child.

    The Court finds that in September 2003, Defendant moved from

her residence in DeKalb County, Georgia and relocated to

Nashville, Tennessee. While the Defendant moved to economically

better herself and by extension, her family, the children of the

parties were moved with Defendant to Nashville. The distance of

the move has interfered with the present custody schedule.

     The move of the Mother has interfered with the consistent

contact of the children with their father and interfered with

their associations here with family, with friends and with Mr.

and Mrs. Barry who have been referred to as "grandparents" of the

children.  The evidence also shows that there have been some

difficulties at school in Nashville.  There has been a consistent

pattern of tardiness and that _______________ is having some

problems academically, as well.

     The children benefited from their associations in the

Atlanta area with family, with friends and with the Barrys.

It is clear that the children were well grounded and benefited from

all the associations that they maintained here.

     The Court finds that, consistent with prior Orders of this

Court and the Final Judgment and Decree in DeKalb, County, both

Father and Mother are fit parents and that a joint custody

arrangement is in the best interest of these children. The Court

finds that the best interest of these children will be served by

their having complete and full access to both parents and the

Court again reaffirms its intention to ensure that these children

have the most access they can to both parents.

[The Court erred in assuming that both parents would not continue

to have complete and full access to their children.]


    The Court finds that the best interest of the children will

be served by granting primary physical custody during the school

year to the Father, Mr. Hardin and primary physical custody

during the summer to the Mother, Ms. Hardin.

[The Court erred in transferring primary physical custody from the

children's primary caregiver, Ms. Hardin,to the father Mr. Hardin

who has the ability to maintain a relationship with the children

through standard visitation of every other weekend and summers. 

During the week the father can maintain visitation through telephone

contact and on the Internet through the usage of video camera programs,

which have been successfully maintained in custody cases throughout

the United States and abroad.]

ACCORDINGLY, IT IS HEREBY ORDERED AS FOLLOWS:

1. CUSTODY:

   The Father, DOUGLAS A. HARDIN will have primary physical

custody of the children during the school year, from three (3)

days before school begins a new year. The Mother, RITA HARDIN,

will have primary physical custody of the children during the

summer, from one (1) day after school is released for the summer

until three (3) days before school begins the new school year.

   For the 2003-2004 school year, the children will finish the

school year with the Mother. The summer of 2004 will be split

between the parents.The Father will have the first half of the

summer from June I, 2004 at 4:00 p.m. eastern time to July 6,

2004 at 4:00 p.m. eastern time. The Mother will have the second

half of the summer from July 6, 2004 at 4:00 p.m. eastern time

until 4:00 p.m. three (3) days before the new school year begins,

at which time the Mother will return the children to the home of

the Father. There will be no weekend visitation for either

party in the summer 2004.

     For the Mother's time of physical custody during the summer

months the Mother will obtain the children from the home of the

Father at the beginning of her time of custody and deliver the

children to the home of the Father at the end of her time of

custody.

    The Father and the Mother will continue to have joint legal

custody. The term joint legal custody contemplates joint

decision making by the Father and the Mother in all matters

affecting the welfare of the children, including but not limited

to choice of schools and education, summer camps, daycare,

medical, and dental treatment and/or counseling for emotional and

behavioral problems and religious training.In the event that

the parties are unable to reach a decision after consulting with

each other then the Father shall have the deadlock breaking vote

for educational and medical decisions. In the event a decision

is required in an emergency, the party who has physical custody

of the child at the time of the emergency may make any decision

regarding the emergency after first trying to reach and consult

the other party. Thereafter the party making the decision shall

continue to attempt to notify the other party until the party is

contacted.

2. VISITATION:

Weekend visitation:

    During the school year,the Mother will have visitation with

the children every other weekend.

    One weekend of that visitation will be exercised here in the

Atlanta area. The visitation exercised here locally will begin on

Friday, August 13, 2004 at 6:00 p.m. eastern standard time and

alternate every other visitation weekend.  This will give the

Mother an opportunity to have the children visit with the Barrys

and eliminate excessive travel time for the children.

For the local visitation, the Mother will be authorized to

pick up the children from school on Friday and return the

children to the home of the Father on Sunday at 4:00 p.m. eastern

time.

     On the other alternate weekend visitation, the parties are

to meet halfway, between the home of the Father in the Atlanta

area and the home of the Mother in the Nashville, Tennessee area.

The exchange on Friday will be at 7:00 p.m. eastern time at a

midway point located at Burger King, 2119 East 23rd Street,

Chattanooga, TN 37404-5809. The exchange on Sunday will be at

5:00 p.m. eastern time at a midway point located at Burger King

2119 East 23rd Street, Chattanooga, TN 37401. The purpose of

this schedule is to require the children to travel only one

weekend a month.

     If the children are out-of school on a Monday that the

Mother has visitation the weekend prior to the Monday, then she

can have the children with her on that Monday whether she's

visiting here in Atlanta or whether the children are with her in

Nashville.  If the visitation is local then the Mother is to

return the children by 5:00 p.m. eastern time on Monday. If the

visitation is in the Nashville, Tennessee area, the Mother is to

meet the Father at the midway point at 5:00 p.m. eastern time on

Monday at Burger King, 2119 East 23rd Street, Chattanooga, TN

37404-5809.

Spring Recess:

     The Mother will have the children with her in every even

numbered year during the children's spring recess from school.

The Father will have the children with him during every odd

numbered year of the children's spring recess from school.

The dates for spring recess will be determined by the school that the

children attend.

     In the years the Mother has spring recess visitation, that

visitation will begin with an exchange on Saturday at 1:00 p.m.

at the midway point and end the following Sunday at 4:00 p.m.

with an exchange at the midway point. Should the spring recess

begin on a Monday following a weekend visitation period for the

Mother, the Mother may exercise that visitation weekend away from

the Atlanta area whether it is a scheduled "away" or "local"

weekend.

Summertime visitation:

     For her summer custody, the Mother will pick up the children

from the home of the Father at 12:00 noon eastern time one (1)

day after the children are released from school for the summer.

She will return them to the home of the Father at 12:00 noon

eastern time three (3) days before the children are to begin

their school year.

     The Father will have one week (7 days) of exclusive time

with the children in the summer. He is to notify the Mother as

to the dates of his week visitation by April 15th of each year.

It will be his responsibility to pick up the children and return

the children to the Mother if he exercises that visitation in the

middle of the summer. The pick up will be at 4:00 p.m. central

time on Sunday from the home of the Mother in Nashville,

Tennessee and the return of the children to the home of the

Mother will be on Sunday at 4:00 p.m. central time.

     If the Father elects to use his visitation at the end of the

summer, the Father can have the Mother return the children a week

earlier to the home of the Father. This would be in addition to

the three (3) days the children are to be returned before school

     Thanksgiving:

  Every odd numbered year the Mother will have visitation with

the children for Thanksgiving holiday. The Mother will pick up

the children at 5:00 p.m. eastern time on Wednesday prior to

Thanksgiving at the home of the Father and will return them at

4:00 p.m. eastern time on Sunday to the home of the Father.

For both the Mother and the Father, the Thanksgiving

schedule will prevail over the weekend schedule.

    Christmas break:

    In the even numbered years, the Mother will pick up the

children at 12:00 noon eastern time at the home of the Father on

the day after school is out for Christmas break and return the

children at 2:00 p.m. eastern time on December 26th to the home

of the Father.

     In the even numbered years, the Father will have

the children with him from 2:00 p.m. eastern time December 26ili

until the children return to school.

     In the odd numbered years, the Mother will pick up the

children at 2:00 p.m. eastern time at the home of the Father on

December 26th and return the children to the home of the Father

at 4:00 p.m. eastern time on January the 2nd.

In the odd numbered years, the Father will have the children with him from

the day school is out for Christmas break until 2:00 p.m. eastern

time December 26th.

     For both the Mother and--the Father, the Christmas schedule

will prevail over the weekend schedule.

Birthdays, Holidays and other Visitation:

  There will be no visitation scheduled for birthdays and

other holidays other than what has been set out herein. Given

the distance between the homes of the parties there is no right

of first refusal as set out in Rita B. Hardin v. Douglas A.

Hardin, Juvenile Court Docket Nos. 02-5509-2, 025510-2 paragraph

5 d.

3. CHILD SUPPORT:

 Having heard the evidence presented concerning the income of

the parties, the Court finds the gross annual income for the

Mother to be $50,000.00. The gross annual income for the Father

is $38,400.00. The Mother is responsible for the payment of

child support for 2 children. The applicable percentage of gross

income to be considered for 2 children is 23%-28%. Thus 25

percent of the Mother's annual income of $50,000.00 is $1041.66

dollars per month and 25 percent of the Father's annual income of

$38,400.00 is $800.00 per month.

    The Court has considered the existence of the special

circumstances, including but not limited to

(1) Ages of the children;

(2) A child's extraordinary medical costs or needs in addition to

accident and sickness insurance, provided that all such costs or

needs be considered if no insurance is available;

(3) Educational costs;

(4) Day-care costs;

(5) Shared physical custody arrangements, including extended

visitation;

(6) A party's other support obligations to another household;

(7) Income that should be imputed to a party because of

suppression of income;

(8) In-kind income for the self-employed, such as reimbursed

meals or a company car;

(9) Other support a party is providing or will be providing, such

as payment of a mortgage;

(10) A party's own extraordinary needs, such as medical expenses;

(11) Extreme economic circumstances including but not limited to;

(A) Unusually high debt structure; or

(B) Unusually high income of either party or both parties, which

shall be construed as individual gross income of over $75,000.00

per annum;

(12) Historical spending in the family for children which varies

significantly from the percentage table;

(13) Considerations of the economic cost-of-living factors of the

community of each part, as determined by the trier of fact;

(14) In-kind contribution of either parent;

(15) The income of the custodial parent;

(16) The cost of accident and sickness insurance coverage for

dependent children included in the order;

(17) Extraordinary travel expenses to exercise visitation or

shared physical custody.

     The Court finds that based upon the shared custody

arrangement the Father has primary physical custody for nine

months and the Mother has primary physical custody for two months

and the month of August is split between the two.

The Mother is required to pay for nine months a total amount of

$9,369.00 and the Father is required to pay for two months a total of

$1,600.00.  Rather than the Mother paying part of the year and

the Father paying part of the year, the Mother will pay $647.42 a

month in child support.  Therefore the amount of $647.42 will be

paid by the Mother to the Father monthly on the 1st day of each

month twelve months of the year.

     Neither party will pay child support to the other for the

months of June, July and August 2004.

     Payment of this amount will begin on the 1st day of

September 2004 and continue thereafter until otherwise altered by

a Court of competent jurisdiction.

     The duty to provide support for the minor children shall

continue until the children become 18 years of age, die, marry,

or otherwise become emancipated, except that if the children

becomes 18 years of age while enrolled in and attending secondary

school on a full-time basis, then such support shall continue

until the children completes secondary school, provided that such

support shall not be required after the children attains 20 years

of age.

    All other terms and provisions of FINAL JUDGMENT AND DECREE,

Rita B. Hardin v. Douqlas A. Hardin, CAFN 00-7513-5, Superior

Court DeKalb County, Georgia and Rita B. Hardin v. Douglas A.

Hardin, Juvenile Court Docket Nos. 02-5509-2, 025510-2; Superior

Court CAFN 02-A-09896-3, Superior Court Gwinnett County, Georgia

shall remain in full effect, except as specifically modified

herein above.

SO ORDERED this I day of June, 2004.


 
Stephen E. Franzen, Judge Gwinnett County Juvenile Court

 

IN THE JUVENILE COURT OF GWINNETT COUNTY

STATE OF GEORGIA

Douglas A. Hardin Plaintiff

vs.

Rita B. Hardin Defendant

ORDER QN MOTION FOR A NEW TRIAL

   A Motion for New Trial was filed subsequent to the entry

of the Final order in this Case. Upon consideration of the

written motions and arguments;

The Motion for New Trial is denied.

80 QRDERED this  2 day of October, 2004.

Steven E. Franzen, Judge
Gwinnett County Juvenile Court



IN THE JUVENILE COURT OF GWINNETT COUNTY

STATE OF GEORGIA

Douglas A. Hardin
   Plaintiff

vs.

Rita B. Hardin
   Defendant

2004, modifying the previous custody Order and Granting

Plaintiff, Douglas Hardin, primary physical custody of the

parties' two children.  The evidence at trial showed that the

Defendant, Rita Hardin, had moved to Nashville, Tennessee.

     The Defendant then filed a Motion for Reconsideration asking

the Court  to consider events that have occurred after the

judgment was entered. Most importantly the Defendant Rita

Hardin has relocated to the Atlanta Metropolitan area.

Upon consideration of written motions and arguments the Court grants

the Motion Reconsider only to the extent that the court modifies

the visitation schedule to include a visitation schedule that

will be operable, so long as both parents are residing in the

Atlanta Metropolitan area.  That modification of visitation is as

follows:

   The Order is modified to include the following language:

"The Court finds that the facts set out in the Court's Findings

of Facts demonstrate that a material change in circumstances of

the children has occurred and that a modification of custody is

in the children's best interest."

[The Court erred in determining that a move by Ms. Hardin,

in order to improve her near poverty level circumstances to

that of a sustaining income, constitutes a material change

in circumstances.]

     The Greater Atlanta area is defined as Fulton, DeKalb,

Gwinnett, Cobb. Walton, Rockdale, Henry, Clayton, Hall, Barrow,

Forsyth, and Douglas Counties and the Athens area.  When the

Mother resides outside the Greater Atlanta area the visitation

schedule set out in the original Order dated June 1, 2004 will be

in effect.  Each party will be responsible for the costs

associated with the travel and their visitation with the

children, which includes but is not limited to food, lodging and

travel costs.

     When the Mother resides outside the Greater Atlanta area the

visitation schedule herein below will be in effect.

WEEKEND VISITATION

During the school year, the Mother w111 have visitation with

the children every other weekend from Friday at 6:00 p.m. until

Sunday at 6;00 p.m. If the children are out of school on a

Monday that the Mother has visitation the weekend prior to this

Monday, then she will have the children until Monday at 6,00 p.m.


WEEKDAYS

     During the father's physical custody period the mother will

have the right to visit with the children Oh Wednesday night of

the week in which she does not have weekend visitation.

Visitation will be from 5:00 p.m. to 7:30 p.m. The mother will

obtain the children from and return the children to, the home of

the father.

     During the mother's physical custody period the father will

have the right to visit w:1.th the children on Wednesday night of

the week in which he does not have weekend visitation.

Visitation will be from 5:00 p.m. to 7:00 p.m. The father will

obtain the children from, and return the children to the Atlanta

area home of the mother.

HOLIDAYS

     THANKSGIVING: Mother shall have physical custody in every

odd-numbered year during the Thanksgiving holidays from Wednesday

at 6: 00 p.m. until the following Sunday at 6: 00 p.m.

CHRISTMAS

  In even numbered years the mother will have the children

with her from  6:00 p.m. the day school. iB out for Christmas break

and retun the children to the father at 12:00 noon on December

26th.  In even numbered years, the father will have the children

with him from 2:00 p.m. December 26th until 6:00 p.m. the day

before school starts.

In odd numbered years the father will have the \ children with

him from the day school 13 out for Christmas break until 12:00

noon on December 26th.

For both the Mother and Father, the Christmas schedule will

prevail over the weekend schedule.

SPRING RECESS

Mother shall have physical custody in every even-numbered

year for the entire Spring recess of the children from school,

commencing at 6:00 p.m. on the day school recesses for Spring

recess until 6:00 p.m. on the Sunday immediately preceding the

resumption of school. If the dates of said recess do not include

Easter, Mother shall have the children for the Saturday evening

preceding Easter and on Easter Day in every-odd numbered year,

beginning at 6:00 p.m. on Saturday and ending at 6:00 p.m. on

Easter Sunday. Father shall have physical custody in every odd-

numbered year for the entire Spring recess of the children from

school, commencing at 6:OO p.m. on the day 8chool recesses for

Spring recess until the children return to school.

If the dates of said recess do not include Easter, Father shall have the

children for the Saturday evening preceding Easter and all day

Easter in every even-numbered year, beginning at 6:00 p.m. on

Saturday.


MOTHERS DAY and FATHERS DAY

   Mother shall have physical custody of the children for

Mother's Day every year from 6:00 p.m. on Saturday until 6.00

p.m. on Sunday, and. Father shall have physical custody of the

children for Father's Day every year from 6:00 p.m. on Saturday

and all day Sunday.

SUMMER

  Father shall have the right to one week of exclusive summer

visitation.  The father will give notice to the mother on or by

April 15 of each year of the week he will exercise his exclusive

summer visitation with the children. The mother shall have the

right to one week of exclusive summer visitation with the

children. The mother will give notice to the father on or by May 1 of each year

at the week she will exercise her exclusive summer visitation with the

children.

    For the mother's summer custody, the children will be

exchanged at 6:00 p.m. the day school lets out for the summer.

The mother will return them at 8:00 p.m. three (3) days before

the children are to begin their school year.

  If, during a period of physical custody, the schedule of the

physical custodian is such that the children will not be with

that parent for a period of more than one night, then that parent

sha11 offer the other parent the opportunity to keep the children

during that period and the other parent wi11 have the right of

first refusal to keep the children during that period.

    All other terms set out in the Order of this Court dated

June 1, 2004 w111 remain in full effect except as specifically

modified herein.

SO ORDERED this 12 day of October, 2004.

Stephen E. Franzen, Judge
Gwinnett County Juvenile Court