Be Neutral
A Publication of the Georgia Office of Dispute Resolution

Case Watch: For Mediators

Who Should Get Custody When Both Parents are Fit?

The following case analysis is part of a regular series we publish to help you broaden your knowledge of rulings of Georgia’s appellate courts that may affect your practice. Remember: mediators should not give legal advice or opinions.

Review of Rowden v. Rowden
, S11F0812, decided November 7, 2011, appeal to the Georgia Supreme Court of a ruling by Judge James F. Bass, Chatham County Superior Court.

Two fit parents in a custody dispute. Who will win?

A custody mediation is probably one of the most difficult mediations to conduct. When one of the parents has obviously lesser parenting skills, the negotiation process can sometimes be easier. But what about when both parents are fit and the both spend quality time with their children? This situation is good for the children, but makes custody mediations more complex. In such cases, it is good mediator practice to encourage the parties to work hard in mediation to resolve the custody fate of their children. Alternatively, if the issue ends up in court, mediators can warn parties that the outcomes becomes anyone’s guess as to the outcome, because the facts are so subject to interpretation by judges and juries. Rowden is a prime example of that fact.

Rowden examined the primary issue of custody between two fit parents, as well as two other questions: 1) Can a non-custodial parent stop paying child support during summer visitation? (This is a question that always arises any time the non-custodial parent has extended parenting time); and 2) When is a custodial parent’s loss of employment willful?

As is the usual case in divorces, the parents in Rowden were unable to communicate and cooperate effectively with each other in matters involving their children and the case went to trial. As to the primary issue of custody, the trial court received evidence that both parents were fit to raise their two minor children. However, the court awarded the Wife primary custody, and of course, child support. What facts did the trial court believe were so important that they tipped the scales in the Wife’s favor?

- Husband did not have a concrete childcare plan for the children;

- Husband did not engage his children in age-appropriate activities with other children that could have assisted in their social development;

- Wife got the children involved in summer camps;

- Wife lived near her own parents, who could help her with the children; and

- Wife planned social events for the children such as birthday parties.

The Rowden trial court concluded that the Wife was the more fit of the two parents and that the children were better off living with her. On appeal, the Supreme Court unanimously found that the trial court was well within its discretion to make that judgment. The standard it used for reviewing the trial court’s custody ruling is:

“The trial court is granted a very broad discretion, looking always to the best interest of the children, and may award the children to one even though the other may not be an unfit person to exercise custody.”

As for the issue of whether Husband’s child support obligation can be abated during the children’s summer vacation visitation with him, the trial court relied on the law, which provides:

“A trial court is not obligated to abate child support obligations for a non-custodial parent during times of visitation.”

The trial court also noted that there was no evidence that a deviation from the presumptive amount of child support was in the children’s best interests, or that application of the child support guidelines was somehow unjust. In short, Husband failed to present any reasons for reducing child support payments during extended visits with his children.

As to willful underemployment of the Wife, the trail court found that she did not intentionally reduce her income. In fact, the court noted, the Wife’s medical practice failed, resulting in her filing for bankruptcy. The Wife’s position, it found, was not motivated by an intent to avoid or reduce the payment of child support. These two rulings of the Rowden trial court also were unanimously upheld by the Supreme Court.

Sometimes facts that appear to be minor to the parties can have a major impact in court. That’s why outcomes in court can be unpredictable. The minor things – and the major things – should be mediated and discussed between the parties. Once the parties submit the issues like child custody to a court, the trial courts are assisted by a broad law, which provides:

“It is the duty of the trial court to resolve the conflicts in the evidence; and where there is any evidence to support the trial court’s findings, it cannot be said that there was an abuse of discretion.”

A quick mediator translation of that rule for the parties: “Any evidence” means ANY evidence, and anything can happen in court. The standard is broad. Therefore, particularly when neither party appears to have an advantage in the facts, both parties should work hard together to control the outcome. The parties are in a better position to decide the fate of their own children than a judge or a jury. They should be reminded that just because the parties believe their claims are controlling, doesn’t mean a court will. If they go to court, they might as well flip a coin.


Mary Ellen Cates is an attorney and registered mediator in Avondale Estates, Ga.  She has practiced domestic law exclusively since 1985.  A divorce mediator since 1998, she is also a domestic arbitrator, and she has been appointed as special master for DeKalb County Superior Court.

Phone: 404-292-3803; fax: 404-292-1510; or