This page is to help you understand the child custody laws in Georgia on children and divorce. The decision on child custody is one of the most difficult decisions that a Georgia family court judge has to make. Dividing the marital property can be easy, put everything in the front yard and auction it off and split the money. Dividing up a child or children is not so easy, especially when you have two equally fit parents. Hopefully, this article will give you some insights into how the decision on child custody is made and how judges expect the parents to work together to insure that the rights of all parties are protected. The first thing a parent needs to understand is that the judge is primarily concerned with the best interest of the child, not the best interest of the parents. When it comes to child custody, the judge is not concerned with who did what unless it impacts the child. Lets start with an explanation of the types of child custody and the differences. The two major types of child custody are legal custody and physical custody.
LEGAL AND PHYSICAL CHILD CUSTODY
LEGAL CHILD CUSTODY
The legal aspect of custody for children and divorce means decision making and the parental authority and rights of each parent. It means having the legal right to make and participate in any material decisions affecting the children. Included are the choice or change of school, college, camp, or comparable summer activity, special tutoring, music, sports, art, dance, and other cultural lessons, psychological or psychiatric treatment or counseling, doctors, and surgeons; notice of illness and injury; access to school and medical records; and all other material decisions affecting the health, education, and welfare of the children. Specifically, legal child custody is the right of the parent to make decisions regarding educational instruction, religious instruction, health care, discipline, and child care providers for their child, but anything relevant to the children could be included in the definition. Legal custody can be granted to one or both parents, but the overwhelming preference in Georgia is for joint legal custody. The judge expects each parent to keep the other fully informed and to consult with the other parent in all major decisions effecting the child.
PHYSICAL CHILD CUSTODY
The second aspect of custody for children and divorce that must be determined is physical child custody. Physical custody simply means the right to have actual physical possession of the children at a certain specified time. The preference is for joint physical custody, which only means that both parents have the right to physical possession of the children at certain times. The actual schedule can vary greatly and this is where tailoring to the specific needs of the family is important. Joint physical custody could be an alternate weekend schedule, alternate weeks, holidays and spring break only, summertime only, alternating weeks, reasonable as agreed, or whatever other schedule is appropriate for the case. The primary terms used to describe physical child custody are sole custody, shared custody, primary physical custody and split custody.
SOLE CHILD CUSTODY
This is the alternative to joint custody where only one parent is granted either all of the decision making rights (sole legal custody) or all of the physical parenting time with the other parent being excluded completely (sole physical custody), or both. Courts are reluctant to order either of these options unless it is shown to be in the childrens best interests, which usually means that physical or emotional danger to the children will occur under any other alternative. There is no such thing as sole physical custody to one parent along with a parenting schedule for the other parent. If both parents are to see the children, whatever the schedule, that is joint physical custody by definition. Even where one parent is judged to be unfit, the judge will usually order at least supervised visitation. Each parent has a Constitution right to have a relationship with their child and judges are very reluctant to totally terminate a parent's rights.
PRIMARY PHYSICAL CHILD CUSTODY
This is the residential address of the child for educational, tax and mailing purposes. It means the home where the child resides for the greater amount of time and the home that is in the child’s school district. The typical designation is the custodial parent and the non custodial parent and is the legal preference for child custody in Georgia. One parent will be awarded primary physical custody and the other parent will be awarded a set visitation schedule and each county has a set “standard”. The typical standard is that the non custodial parent will have custody of the child every other weekend from 6 pm on Friday until 6 pm on Sunday, one evening every week and split time for holiday and school vacation periods.
This is an arrangement where the children are “split up” between the two parents, meaning that some of the children reside with one parent while the other children reside with the other parent. This is not too common, but it does happen. Courts are usually reluctant to split up children except in the most unique of circumstances, but the parents can agree to such an arrangement if they feel it is best.
SHARED CUSTODY or JOINT CUSTODY
This is an arrangement where the child is “shared” between the two parents, meaning that the child resides with one parent for half of the time and the other parent for the other half and this is often termed joint custody in Georgia. This is the preference in Georgia since the courts feel that minor children should have frequent and continuing contact with parents who have shown the ability to act in the best interests of their children and to encourage parents to share in the rights and responsibilities of rearing their children after the parents have separated or dissolved their marriage or relationship. Where the custody is shared, one schedule is weekly with the exchange being made a 6 pm on Sunday with no allowances for holidays except Christmas.
Your child custody attorney is your tools to express your side and to present your facts and arguments as to why you should be awarded custody of your child? It is your responsibility to provide the proper ammunition the lawyer needs to persuade the family court in your favor. Providing your attorney with too little to go on or a weak case to base an adequate defense and you will lose even with the best attorney in the world. It is necessary to present a well thought out and persuasive child custody case to the judge. It’s your responsibility to provide your attorney and the GAL with relevant persuasive arguments and facts. Nobody knows the facts as well as you and it's up to you to provide your attorney with any and all facts in your favor. The attorney is not an investigator, that is your role.
Here are some of the elements a judge may consider in deciding a child custody case.
Drug Abuse. It is fairly standard for the judge to order that both parties take a hair strand drug test and submit it to the court. Parents who abuse drugs or alcohol will not be awarded custody.
Wishes of the child. The judge may take the wishes of the child into consideration. While this is just one element, the older the child the more weight the judge is likely to give to the child's wishes. See the full discussion below.
Past custody. Who has historically had custody of the child and has that party provided a safe and stable environment for the child.
Parental behavior. Has there been domestic violence, excessive use of alcohol, criminal convictions, parental kidnapping, or any behavior that endangered the child
Encourages a relationship with other parent. Which parent will best foster a relationship between the child and the other parent. Has one parent withheld visitation to “punish” the other parent or made derogatory comments about the other parent.
Home Environment. Which parent offers the child the best stable home environment. This includes who can best supervise the child at home, the living conditions, what other adults and children, especially siblings, are in the home, the neighborhood where the home is located, which parent will be able to better continue the same school and friends.
Employment. Which parent is better able to financially provide for the child. If the parent works, what arrangements are there for babysitters, day care, etc. Does one parent travel.
Relatives. Does one parent have relatives that have a close relationship with the child.
Health. Does the child or a parent have any health issues that would impact the decision on custody. Which parent normally makes doctor appointments and accompanies the child to those appointments.
Religion. Which parent will expose the child to spiritual guidance and growth.
Relationship with child. The love, affection and emotional ties between the parent and child. With which parent does the child bond more, spends more time with the child, bathes and puts a young child to bed, prepares the child's meals and to which parent does the child openly show signs of affection.
Character. The judge will have to evaluate in a short period of time the character of the parties and whether one parents morality and credibility makes them the best parent to award custody.
Guardian ad Litem. Any recommendation by a court appointed Guardian ad Litem. This is usually a very important element since the GAL is an independent evaluator.
A petition to modify child custody “should be granted only if the trial court finds that there has been a material change of condition affecting the welfare of the child since the last custody award. If there has been such a change, then the court should base its new custody decision on the best interest of the child.” In the Interest of T.S., 300 Ga.App. 788, 790 (2) (686 S.E.2d 402) (2009); OCGA § 19-9-3 (b) (a trial judge may modify custody “based upon a showing of a change in any material conditions or circumstances of either the party or the child”).
Thus, in order for Harris to prevail on her petition to modify custody, she was required to present evidence that changes in Williams’s circumstances had an adverse effect on the children or that changes in her circumstances would have a beneficial effect on the children. See id.; Moses v. King, 281 Ga.App. 687, 692 (1) (637 S.E.2d 97) (2006); Weickert v. Weickert, 268 Ga.App. 624, 627 (1) (602 S.E.2d 337) (2004). For the reasons discussed below, the trial court was authorized to conclude that Harris failed to make the requisite showings.
Specifically, Harris failed to demonstrate that Williams’s mother’s house was inadequate for the children’s needs or that the children’s welfare was materially affected by the living arrangements there. In this regard, Harris admitted that she had no knowledge of the children’s living arrangements at Williams’s mother’s house. While there was some evidence that his eight-year-old daughter and six-year-old son shared a bedroom initially, the evidence showed that Williams’s children slept in separate rooms.
Likewise, Harris failed to show that Williams’s late shifts at work materially affected the children’s welfare. When Williams worked the late shift, the children took the bus home and his step-mother would care for them until Williams returned home. Nothing of record indicated that the children were not being cared for, or that Williams’s work schedule had a detrimental effect on the children. On the contrary, Williams took the children to and from school on multiple occasions and frequently prepared their meals. When Williams had to be at work early, either Williams’s mother or his step-mother would get the children on the bus in the morning.
Finally, we reject Harris’s claim that her daughter’s out-of-county school attendance adversely affected her well-being. The trial court was authorized to conclude that Williams’s decision to allow his daughter “to finish out the... year” in Henry County was intended to maintain continuity in her education. See Green v. Krebs, 245 Ga.App. 756 (1) (538 S.E.2d 832) (2000) (describing the Solomonic task upon the trial judge to observe the demeanor and attitudes of witnesses in assessing their credibility); see also OCGA § 19-9-3 (a) (3) (G) (the trial judge may consider “[t]he importance of continuity in the child’s life and the length of time the child has lived in a stable, satisfactory environment and the desirability of maintaining continuity” in determining the best interests of the child).
Evidence that Williams had an extensive family network available to him also supported the trial court’s decision to deny Harris’s petition to modify custody. See OCGA § 19-9-3 (a) (3) (H) (trial court may also consider “[t]he stability of the family unit of each of the parents and the presence... of each parent’s support systems within the community to benefit the child” in determining the child’s best interests).
Georgia was one of a minority of states in which a binding election by a minor child existed. The 2007 revisions to the child custody statutes still allow for a minor child, at the age of 14, and beyond, to elect to live with one parent over another, however, the presumption is no longer that the child’s election shall be binding but for a finding of unfitness of the party chosen.
The minor child of applicable age may chose to elect to live with one parent, however, that choice “shall be presumptive unless the parent so selected is determined not to be in the best interests of the child.” An election may be a change of circumstances sufficient to warrant a modification of custody at the discretion of the judge. O.C.G.A. §19-9-3(a)(5).
In essence, the statute provides consistency that it is the judge who is empowered with making a decision of custody in the best interests of the child, not the minor child by virtue of being 14 years of age or beyond.
In the event a minor child 11 years of age, but not yet 14, makes an election, “The judge shall have complete discretion in making this determination, and the child's desires shall not be controlling.” O.C.G.A. §19-9-3(a)(6).
Unlike the election of a 14 years old or beyond, the election of an 11 to 14 year old shall not, by itself, be a change in circumstances. Interestingly, the statute has a built in ‘trial period’ of change of custody on a temporary basis available to the judge for children age 11 to 14 (which does not specifically extend to those minor children 14 and beyond.). “The judge may issue an order granting temporary custody to the selected parent for a trial period not to exceed six months regarding the custody of a child who has reached the age of 11 but not 14 years where the judge hearing the case determines such a temporary order is appropriate.” O.C.G.A. §19-9-3(a)(6).
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Georgia child custody law mandates that in every case in which custody is an issue a parenting plan shall be submitted. O.C.G.A. §19-9-1.
The parties may submit a parenting plan together, or each may submit his or her own. A parenting plan may be required for a temporary hearing, and shall be required for all permanent custody and modification actions. O.C.G.A. §19-9-1(a).
It is the judge’s discretion at what time during the pendency of an action the parenting plan shall be submitted, so make sure you check with the judge’s chambers to what the judge prefers. The contents of the parenting plan may be ordered by a judge, and if not otherwise ordered, specifically a parenting plan shall include:
(A) A recognition that a close and continuing parent-child relationship and continuity in the child's life will be in the child's best interest;
(B) A recognition that the child's needs will change and grow as the child matures and demonstrate that the parents will make an effort to parent that takes this issue into account so that future modifications to the parenting plan are minimized;
(C) A recognition that a parent with physical custody will make day-today decisions and emergency decisions while the child is residing with such parent; and
(D) That both parents will have access to all of the child's records and information, including, but not limited to, education, health, extracurricular activities, and religious communications. O.C.G.A. §§19-9-1(b)(1)(A)-(D).
Additionally, “unless otherwise ordered by the judge, or agreed upon by the parties, a parenting plan shall include, but not be limited to:”
(A) Where and when a child will be in each parent’s physical care, designating where the child will spend each day of the year;
(B) How holidays, birthdays, vacations, school breaks, and other special occasions will be spent with each parent including the time of day that each event will begin and end;
(C) Transportation arrangements including how the child will be exchanged between the parents, the location of the exchange, how the transportation costs will be paid, and any other matter relating to the child spending time with each parent;
(D) Whether supervision will be needed for any parenting time and, if so, the particulars of the supervision;
(E) An allocation of decision-making authority to one or both of the parents with regard to the child's education, health, extracurricular activities, and religious upbringing, and if the parents agree the matters should be jointly decided, how to resolve a situation in which the parents disagree on resolution; and
(F) What, if any, limitations will exist while one parent has physical custody of the child in terms of the other parent contacting the child and the other parent's right to access education, health, extracurricular activity,and religious information regarding the child. O.C.G.A. §§19-9-1(b)(2)(A)-(F).
Unless otherwise ordered by the judge, the four requirements of O.C.G.A. §§19-9-1(b)(1)(A)-(D) must be included in every parenting plan submitted. The six requirements of O.C.G.A. §§19-9-1(b)(2)(A)-(F) shall only be included in parenting plans where the parties are not in agreement.
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