COMPTON SMITH v. GONZALES GUERRERO (2026)

This is a child custody case. Appellant Jasmine Compton-Smith (Mother) and appellee Eladio Gonzales-Guerrero (Father) were never married but have one child together, who was born in 2011. In 2016, orders were entered legitimating the child, awarding Mother primary physical custody, and granting Father visitation rights. Mother later moved to California but allowed the child to live primarily with Father in Georgia for a few years. On June 29, 2023, after Mother informed Father that she planned to relocate the child to California to live primarily with her, Father filed a petition for modification of child custody and a motion for an expedited hearing that resulted in an order temporarily awarding Father sole physical custody.

Following an eventual bench trial, on March 26, 2025, the trial court entered a Final Order finding that there had been a material change of circumstances necessitating a modification of custody, awarding Father primary physical custody, and granting Mother visitation rights. The court also awarded Father $20,000 in attorney fees. Mother appeals, contending that the record contains no evidence of any material change of circumstances, that the trial court erred in admitting out-of-court statements the child made to her longtime therapist under the hearsay exception for statements made for purposes of medical diagnosis and treatment, and that the record contains no evidence supporting the award of $20,000 in attorney fees to Father. For the reasons that follow, we affirm.

1. Mother contends that the record contains no evidence of any material change of circumstances as required to support a modification of child custody. See OCGA § 19-9-3(b) (recognizing trial courts’ authority to enter a judgment modifying a child custody award “based upon a showing of a change in any material conditions or circumstances of a party or the child”). However, after the 2016 custody order was entered, Mother moved from Georgia to California and allowed the child to live primarily with Father in Georgia for multiple years. A custodial parent's cross-country move unquestionably qualifies as a material change of circumstances warranting judicial reexamination of a child custody award to see if it still serves the best interest of the child. See, e.g., Gallo v. Kofler, 289 Ga. 355, 356-57(1), 711 S.E.2d 687 (2011); Bodne v. Bodne, 277 Ga. 445, 445-46, 588 S.E.2d 728 (2003). Accordingly, this claim lacks merit.

2. Mother also contends that the trial court erred in admitting out-of-court statements the child made to her longtime therapist. The therapist, who is a licensed clinical social worker, testified that, during therapy sessions, the child told her that when she resided with her mother, “the environment did not produce safety,” but that, when she resided with her father, “[s]he didn't have to really feel like she didn't have control over her environment.” Mother objected on hearsay grounds, but the trial court overruled the objections based on OCGA § 24-8-803(4).

OCGA § 24-8-803(4) provides that, even though the declarant is available as a witness, a court shall not exclude under the hearsay rule out-of-court “[s]tatements made for purposes of medical diagnosis or treatment and describing medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment.” For an out-of-court statement to be admissible under OCGA § 24-8-803(4), two things must be true: (1) “the declarant's motive in making the statement must be consistent with the purposes of promoting treatment”; and (2) “the content of the statement must be such as is reasonably relied on by a physician in treatment or diagnosis.” State v. Almanza, 304 Ga. 553, 561(3), 820 S.E.2d 1 (2018) (citation modified). As to the first prong, nothing in the record suggests that the child's motive in telling her therapist about her living environments with Mother and Father was for any purpose other than promoting treatment of her diagnosed generalized anxiety disorder. See Smith v. State, 309 Ga. 240, 247(2)(b), 845 S.E.2d 598 (2020). As to the second prong, the therapist testified that, in diagnosing and treating the child, she had to rely on what the child told her and the child's presentation of how her symptoms arose. See United States v. Gonzalez, 905 F.3d 165, 200 (III)(D)(2)(a) (3d Cir. 2018) (holding that Rule 803(4) of the Federal Rules of Evidence “applies to statements made to therapists and mental health professionals”). See also United States v. Kappell, 418 F.3d 550, 556 (II)(B) (6th Cir. 2005) (“We hold that Rule 803(4) covers statements made to a psychotherapist for purposes of medical diagnosis or treatment, even though the therapist is not a physician or nurse.”). Thus, the challenged statements satisfied the two-part test for admissibility under OCGA § 24-8-803(4), and the trial court therefore did not abuse its discretion in overruling Mother's hearsay objections.

3. Finally, Mother contends the record contains no evidence supporting the award of $20,000 in attorney fees to Father. However, on direct examination, Father testified that he had paid his attorney “20-plus thousand I believe.” Moreover, Father's attorney stated in her place:

We are a flat fee law firm ․. His total bill in the case, I think, is over $40,000 because we do keep track of billing hourly. We are asking for $20,000 today. My rate is $400 an hour. I have been practicing for ten-and-a-half years in the north metro Atlanta area and I believe that my fees are reasonable and necessary given my level of experience and expertise ․.

Mother did not object. See Rank v. Rank, 287 Ga. 147, 149(2), 695 S.E.2d 13 (2010) (“Attorneys are officers of the court, and their statements in their place, if not objected to, serve the same function as evidence.” (citation modified)). Accordingly, this claim fails.

Judgment affirmed.

Pipkin, Judge.

McFadden, P. J., and Hodges, J., concur.