In making a custody award, a trial court "may properly consider each parent's fitness for custody, his character, his personality, and his general health." Weaver v. Weaver , 238 Ga. 101, 103 (2), 230 S.E.2d 886 (1976). In fact, OCGA § 19-9-3 (a) (3) (N) specifically provides that in determining the best interest of the child for a custody award, a trial court may consider "[t]he willingness and ability of each of the parents to facilitate and encourage a close and continuing parent-child relationship between the child and the other parent, consistent with the best interest of the child[.]"
1. It was error for the trial court to deny the wife's motion for a judgment on the pleadings granting a divorce to both parties. See Weaver v. Weaver, 238 Ga. 101 (1) ( 230 S.E.2d 886) (1976); Anderson v. Anderson, 237 Ga. 886 (1) ( 230 S.E.2d 272) (1976); Loftis v. Loftis, 236 Ga. 637 ( 225 S.E.2d 685) (1976); Marshall v. Marshall, 234 Ga. 393 ( 216 S.E.2d 117) (1975); and, Friedman v. Friedman, 233 Ga. 254 ( 210 S.E.2d 754) (1974). 2.
1. Although the decision of this court in Bryan v. Bryan, 242 Ga. 826 ( 251 S.E.2d 566) (1979) had not been decided at the time the trial judge entered his order, the holding therein controls the disposition of this case. Following previous decisions of this court in Lindsey v. Lindsey, 238 Ga. 685, 687 ( 235 S.E.2d 6) (1977); Weaver v. Weaver, 238 Ga. 101 ( 230 S.E.2d 886) (1976) and Anderson v. Anderson, 237 Ga. 886, 887 ( 230 S.E.2d 272) (1976), the Georgia legislature amended Code Ann. § 30-201, Ga. L. 1977, pp. 1253, 1257, changing the effect of those cases. We said in Bryan v. Bryan, supra, "[t]he factual cause of the parties' separation was made relevant to both the issues of entitlement and amount of alimony, regardless of the grounds on which the divorce is granted.
This court has previously recognized that the conduct of the parties is relevant on the issue of custody even though a divorce is granted on the ground that the marriage is irretrievably broken. Marshall v. Marshall, 234 Ga. 393, 394 ( 216 S.E.2d 117) (1975); Weaver v. Weaver, 238 Ga. 101, 103 ( 230 S.E.2d 886) (1976); Lindsey v. Lindsey, 238 Ga. 685, 687 (3) ( 235 S.E.2d 6) (1977). The first premise of the trial judge was not an erroneous principle to apply under the evidence in the present case.
Rather, the trial court was simply reminding the parties that it is the court’s duty to make the ultimate custody determination in the case. See Weaver v. Weaver, 238 Ga. 101, 103 (2), 230 S.E.2d 886 (1976) (concluding that it is the duty of the court to make a custody determination in the best interests of the children), superceded by statute on other grounds, Davidson v. Davidson, 243 Ga. 848, 849 (1), 257 S.E.2d 269 (1979); Pate v. Sad- lock, 345 Ga. App. 591, 597 (3), 814 S.E.2d 760 (2018) (holding that a court cannot delegate decisions regarding custody or visitation to an expert). Barrett has not met her burden of demonstrating that the trial court abused its discretion in refusing to appoint a guardian ad litem on these grounds.
See Burton v. Furcron , 207 Ga. 637, 637, 63 S.E.2d 650 (1951) ("Where children are involved in the granting of a divorce decree, it is the duty of the trial judge to award their custody."). See also Weaver v. Weaver , 238 Ga. 101, 103 (2), 230 S.E.2d 886 (1976) ("Any agreement or consent to custody between the husband and wife is not controlling on the court. ... [I]t was the duty of the court to make a custody decision in the children’s best interests, regardless of the appellant’s apparent willingness to give custody to the appellee."). Gnam’s petition requesting visitation rights was filed in the same year as the divorce action.
We find that the trial court effectually eliminated any error created by the admission of the irrelevant evidence, and that appellant has failed to show how it has been harmed thereby. See generally Phoenix Ins. Co. v. Gray, 107 Ga. 110 (3) ( 32 S.E. 948) (1899); Robinson v. Gray, 22 Ga. App. 25 (1) ( 95 S.E. 324) (1918), and cits. This enumeration of error thus affords no basis for reversal. Compare Weaver v. Weaver, 238 Ga. 101 (2) ( 230 S.E.2d 886) (1976). 2.
Because we have found the other enumerated errors to be without merit, this error may be cured by a hearing in the trial court. Brown v. State, 238 Ga. 101, supra. If the trial judge determines that production of some of the material should have been required and such material justifies a retrial, a new trial must be ordered. In the absence of specific legislative or decisional case law on this issue, we commend the Federal Rules of Criminal Procedure, Rule 16 for guidance.