To that end, our Supreme Court has held that "a trial court abuses its discretion when it places an unnecessarily burdensome limitation on the exercise of a parent's right of visitation." Brandenburg v. Brandenburg , 274 Ga. 183, 184 (1), 551 S.E.2d 721 (2001). And with respect to a child's exposure to a third party during visitation with a non-custodial parent,
Suffice it to say, if Darby did not believe that such a provision was in the best interests of her children, she should not have agreed to its inclusion in the settlement agreement.See Ward v. Ward, 289 Ga. 250, 250–51(1), 710 S.E.2d 555 (2011) (holding that trial court abused its discretion in amending visitation provision in final decree to provide that mother “ ‘shall not have any overnight male guests while the minor children are present’ ” because the provision would prohibit the mother “from having visitors with whom she has no romantic relationship”); Arnold v. Arnold, 275 Ga. 354, 354, 566 S.E.2d 679 (2002) (holding that trial court abused its discretion in prohibiting children “from any contact with a certain named friend of Wife” when there was “no evidence that the relationship between Wife and her friend was or will be harmful to the children, or that they ever engaged in any inappropriate conduct in the presence of the children”); Brandenburg v. Brandenburg, 274 Ga. 183, 184(1), 551 S.E.2d 721 (2001) (holding that trial court abused its discretion in prohibiting father from exercising visitation with children in the presence of his girlfriend, even if the two should marry, when there was no “evidence that such relationship had or likely would have a deleterious effect on the children beyond that normally associated with divorce or a parent's remarriage”); Katz v. Katz, 264 Ga. 440, 440, 445 S.E.2d 531 (1994) (holding that trial court abused its discretion “regarding the provisions of the final judgment pertaining to visitation in the event the mother moves”). But see Mongerson v. Mongerson, 285 Ga. 554, 556(2), 678 S.E.2d 891 (2009) (holding that trial court's decision to prohibit children's exposure to paternal grandparents was not an abuse of discretion when evidence showed that grandparents “had been physically and emotionally abusive of the children”), overruled on other grounds by Simmons v. Simmons, 288 Ga. 670, 706 S.E.2d 456 (2011).
While this State has a policy to "encourage parents to share in the rights and responsibilities of raising their child[ren] after such parents have separated or dissolved their marriage" (OCGA § 19-9-3 (d)), a trial court has discretion to prohibit the exercise of visitation rights by a non-custodial parent in the presence of certain people if the evidence demonstrates the children have been exposed to inappropriate conduct involving the specified persons or that exposure to the prohibited persons would adversely affect the children. Brandenburg v. Brandenburg, 274 Ga. 183 (1) ( 551 SE2d 721) (2001); Moses v.King, 281 Ga. App. 687, 691 ( 637 SE2d 97) (2006). "In the absence of evidence that exposure to a third party will have an adverse effect on the best interests of the children, a trial court abuses its discretion by prohibiting a parent from exercising his or her custodial rights in that person's presence."
We agree. A trial court has discretion to place restrictions on custodial parents' behavior that will harm their children. See Arnold v. Arnold, 275 Ga. 354, 354 ( 566 SE2d 679) (2002) (holding that if evidence shows that "exposure to a third party will have an adverse effect on the best interests of the children," a trial court may prohibit a parent "from exercising his or her custodial rights in that person's presence"); Brandenburg v. Brandenburg, 274 Ga. 183, 184 ( 551 SE2d 721) (2001) (holding that the husband's relationship with a girlfriend "could support the imposition of certain limitations upon his visitation rights if it was shown that such conduct adversely affects his children"). Here, however, even assuming that the evidence was sufficient to find that the children would be adversely affected if any boyfriends of Dorene spent the night with her, the restriction against " any overnight male guests" would prohibit Dorene from having visitors with whom she has no romantic relationship and for whom the record does not support a finding of any harmful effect on her children.
Arnold v. Arnold, 275 Ga. 354 ( 566 SE2d 679) (2002). See also Brandenburg v. Brandenburg, 274 Ga. 183, 184 (1) ( 551 SE2d 721) (2001) (reversing order prohibiting visitation in the presence of father's cohabiting girlfriend when there was no record evidence that the relationship had or would likely have a deleterious effect on the children). In light of this precedent, I believe we must conclude that the trial court abused its discretion in imposing the challenged visitation restriction.
We recently held that it is an abuse of discretion to restrict visitation rights by prohibiting their exercise in the presence of a certain person unless the evidence demonstrates that exposure to that individual would adversely affect the children. Brandenburg v. Brandenburg, 274 Ga. 183, 184(1) ( 551 S.E.2d 721) (2001). In this case, however, the trial court fully complied with Brandenburg by granting liberal visitation to Father without regard to Ms. Walker's presence.
The trial court denied the motion, and Wife applied for a discretionary appeal. We granted the application to determine whether imposition of the restriction complies with the standard established by Brandenburg v. Brandenburg, 274 Ga. 183, 184(1) ( 551 S.E.2d 721) (2001). In the absence of any evidence that exposure to a third party will have an adverse effect on the best interests of the children, a trial court abuses its discretion by prohibiting a parent from exercising his or her custodial rights in that person's presence.
Jewell , 346 Ga. App. at 738 (1), 816 S.E.2d 683. See Arnold v. Arnold , 275 Ga. 354, 354, 566 S.E.2d 679 (2002) ; Brandenburg v. Brandenburg , 274 Ga. 183, 184 (1), 551 S.E.2d 721 (2001). Likewise, the trial court made no finding that H. C. was even aware that her Mother had abortions, much less that she was harmed by them.
Under Georgia law, a parent's cohabitation with someone is not a basis for denying custody or visitation absent evidence that the child was harmed or exposed to inappropriate conduct. See, e.g., Arnold v. Arnold , 275 Ga. 354, 354, 566 S.E.2d 679 (2002) ; Brandenburg v. Brandenburg , 274 Ga. 183, 184 (1), 551 S.E.2d 721 (2001). The trial court speculated that some day C. M.’s peers might see the photographs and tease her about them.
Georgia’s appellate courts have held that a parent’s cohabitation with someone, regardless of that person’s gender, is not a basis for denying custody or visitation absent evidence that the child was harmed or exposed to inappropriate conduct. See, e.g., Hayes v. Hayes, 199 Ga. App. 132 , 133 (404 SE2d 276 ) (1991) (affirming the trial court’s finding that there was no change in material circumstances even though both parents were involved in meretricious relationships, because there was no evidence that the child had been exposed to inappropriate conduct); Livesay v. Hilley, 190 Ga. App. 655 , 656-657 (2) (379 SE2d 557 ) (1989) (mother’s *900 cohabitation provides no basis for a change in custody absent evidence of harm to the child); see also Brandenburg v. Brandenburg, 274 Ga. 183 , 184 (1) (551 SE2d 721 ) (2001) (wherein the Supreme Court of Georgia reversed an order which prohibited contact between the children and their father’s live-in girlfriend, because there was no evidence that the children had been exposed to inappropriate conduct or had been adversely affected by the relationship). Turner & Lawrence, Kenneth G. Lawrence, for appellant.