Child Custody Laws in Georgia
Chief among the concerns that you may have prior to the start of the divorce process is the degree to which the impending split will affect your ability to see and take part in raising your children.
Unfortunately, these concerns can be amplified as you start to see more of the legal paperwork and hear more divorce-related terms being used, a scenario that can make you confused about everything that’s going on and what the future might hold.
Legal custody v. physical custody
The best starting point for any discussion of Georgia’s child custody and visitation laws is to examine the very important differences between legal custody and physical custody.
- Physical custody is what most people envision when they hear the term child custody. It essentially addresses which parent’s home will serve as child’s primary residence post-divorce.
- Legal custody addresses which parent will be given the ability to make important decisions on behalf of their child, including those relating to education, religion, healthcare and extracurricular activities to name only a few.
When it comes to awarding both physical and legal custody, it’s important to understand that, absent extraordinary circumstances, courts typically follow a pattern of awarding only one parent physical custody and both parents legal custody. In other words, the standard award is primary physical custody and joint legal custody.
Parents must also understand that they are equal in the eyes of the law when it comes to awarding custody, meaning there is no presumption that a child would be better off living with a mother or father. Rather, all custody determinations are made based on a determination of what would be in a child’s best interests.
The factors considered in awarding custody
The court will only do what it deems to be in the best interests of the child when it comes to awarding custody. When making this important determination, a presiding judge will consider a multitude of factors, including just some of the following:
- The length of time in which a child has resided in their current home and the overall stability of this environment.
- The respective strengths of parent-child bonds.
- The level of parental involvement in the child’s life.
- The physical and mental health of both parents.
- The ability of each parent to meet the child’s need as they relate to things like food, clothing, medical care and education.
- The history of criminal activity, family violence or substance abuse.
- Sole custody.
Although courts typically follow a pattern of awarding physical custody to one parent and legal custody to both parents, there can be exceptions to this rule.
Indeed, a judge may determine that it is in the best interests of the child for one parent to be awarded sole custody, meaning they are vested with sole authority to make decisions on behalf of the child. The only exception to this being the sorts of everyday decisions that naturally arise during the course of visitation with the other parent.
Joint legal custody and disagreements
So what happens when parents with joint legal custody can’t reach a mutually acceptable solution on a particular issue?
In general, the parenting plan or court order will actually set forth in precise detail how such scenarios are to be managed and/or even avoided. Specifically, it might dictate the following:
- One parent is vested with the sole authority to make certain types of decisions while the other parent is vested with the sole authority to make other types of decisions; For example, one parent is solely responsible for decisions about education, while another parent is solely responsible for decisions about religion.
- One parent is appointed to act as a sort of “tie breaker” for each important issue.
- The parent with primary physical custody will have the final say on all issues in dispute.
- Modification of custody.
One inevitable corollary to any discussion about custody disagreements is modification. Specifically, you may wonder if you can petition the court for a modification of either physical or legal custody.
The answer to this question is yes, but the parent must be able to demonstrate that there has been a substantial change in circumstances that directly affects the best interests of the child since the time the court order or parenting plan was originally entered.
When moving to a different state impacts child custody
If custody is contested, the divorce can quickly become a mess. The two spouses will likely spend significant time in court as they try to reach a resolution to their custody dispute.
Thankfully, many couples are able to reach a shared custody arrangement early in the process. This can be great for the child and also for both of the parents. But when you have a joint custody arrangement, the success of this new relationship depends quite a bit on the working relationship between the ex-spouses.
Now throw in a major life event, and things can get very complicated in a hurry.
For example, what if the father or mother learns of a new job opportunity in a different state? How would the parents come to reach a new agreement, and what rules would be in place for this new custody arrangement?
What if one parent is forced to move due to a medical emergency or the needs of a family member? Again, this can cause tremendous complications in the child custody equation.
Even though this may all sound scary, it is also just as important to realize that there is a solution to the interstate custody problem. Obviously the solution is going to look a little different depending on the situation — but there is a way for you and your spouse to figure out a child custody arrangement that works for everyone in the wake of a big move to a different state.
Does Georgia custody modification use a ‘best interest’ standard?
While the general standard used by a family law court to determine initial custody is what is in the ‘best interests of the child,’ there is a slightly different procedure when deciding whether to grant a modification of an existing order.
As it is assumed that the court determined the best interests of the child in the initial divorce case or non-marital child custody hearing, a parent wishing to modify that order will need to have evidence that something has changed that will convince the court to reexamine what is in the child’s interest. This requirement is explicated in a case that came before the Georgia Court of Appeals in 2010.
In the case, called Harris v. Williams, a prior divorce proceeding had resulted in the award of joint legal custody with physical custody going to the father of the children of the marriage. The mother of the children filed a petition to modify custody, among other things that are not relevant to our discussion. The trial court denied the modification and the mother appealed, claiming that the judge had not applied the ‘best interest of the children’ standard. The Court of Appeals upheld the judge’s decision, reasoning from prior precedent that the first step in succeeding in a custody modification is for the petitioner to show a ‘material change‘ affecting the child’s welfare has occurred. Only when this hurdle is cleared will the court then proceed to determine what arrangement is now in the child’s best interest.
What constitutes a material change will depend upon the circumstances of each case. However, as Harris shows, the trial court will likely require some specific demonstration of an effect on the child’s welfare, rather than simply vague assertions of a change in lodgings or work schedule.
Do mothers get preference in Georgia child custody?
There seems to be a supposition among some Georgia residents that mothers have an advantage in child custody proceedings, whether in a divorce or in an out-of-wedlock situation. The law itself, in Georgia, however, is clear on the matter. Georgia Code Section 19-9-3 states, at the very top, that no “prima-facie” advantage is to be given to either party in a custody determination process. This means that there is no legal presumption that the mother will be a better caregiver than the father.
It is possible, perhaps, that the social roles of mother and father give rise to the perception of favoritism for the mother in such proceedings. As we have previously touched on, a couple of the factors that a court will consider in a custody proceeding are the strength of already-extant bonds between the child and his or her parents and the level of parental participation in the child’s life. While in the past some courts may have found these bonds are stronger between the child and the mother, these days that is not always true and the specific facts of each case will likely determine the outcome of custody disputes.
All in all, there is no legal advantage in custody determination that favors the mother. Courts are bound by statute not to assume one parent is a better caregiver than the other. As stated above, the facts of each case will be determinative of the potential outcome. Because of this, people in child custody disputes may wish to consider consulting an experienced Georgia family attorney.
What’s ‘the best interest of the child’ in Georgia child custody?
When people in Georgia turn to the legal system for help, they are often looking for straightforward answers. While legal professionals may have insight into these and other questions, one thing most people who encounter the judicial system find out fairly quickly is that very little is cut-and-dried.
For example, many Georgia residents who have gone through a divorce or otherwise terminated a relationship with their child’s other parent may have been confronted with the phrase “the best interests of the child.” This is the standard a court in the state is supposed to use in most cases when determining the custody status of a child.
While it may seem like a straightforward idea to some, the differences of opinion between the parents can reveal the difficulties in deciding what the best interests of the child are. Moreover, one will find that there is no clear, specific definition of this phrase in the law. There is a reason for this. The court needs discretion to follow where the facts of the case lead it. That said, there may be some factors that are more important than others. According to Georgia Legal Services Program, for example, physical, emotional or sexual abuse is never going to be in the best interest of a child. If any of these factors are present, the perpetrator is very unlikely to be given any kind of custody. But absent those things, what else might be considered? Well, perhaps the amount of time each parent spent with the child, and who provided for the child’s financial and other needs may be considered. For instance, who helps the child with schoolwork, plays with the child, bathes him or her and makes sure his or her teeth are brushed? Who reads to the child and puts him or her to bed? Who does a parent associate with? Does a parent have bad habits like excessive drinking or drug use?
Again the above factors are only a small portion of the myriad potential consideration that can affect a child custody case in Georgia. People with specific questions about child custody and the best interests of the child may wish to contact a family law attorney.
Does a child have any say in Georgia child custody disputes?
Georgia courts generally use a “best interest of the child” standard to determine who will receive legal custody of the children. One question may arise in this context: who knows what is in the best interests of the child better than the child him or herself? While the answer to this question is more nuanced than it may first appear, as one must consider the age and maturity of a child, and realize that the law, for many purposes, doesn’t necessarily treat a child as one who has the ability to make major decisions for him or herself.
However, state law does provide a way for some children to weigh in on the question of custody. Under Georgia Code Section 19-9-3, a child of age 14 or older may choose which parent he or she wishes to live with. Moreover, this decision is binding on the court unless the parent chosen is found to not be a “fit and proper” person for the child to live with, which is a different standard than just finding that the other parent may be in the child’s best interests. Children under 14 years of age may express a preference and the court may consider it; however, the court will determine custody in such cases based on the best interest standard. Further, it should be remembered that unmarried fathers may have no right to custody at all unless the process of legitimation has occurred.
As you can see, there is a provision for children to affect the outcome of custody disputes. Whether it is desirable in any individual case to make a child choose between his or her parents in a legal proceeding is another question entirely.
When it comes down to it, parents in a child custody situation may wish to consider seeking the advice of a family law attorney. Call 770-887-1209 or use our contact form to contact a child custody attorney in Cumming, GA.
Do Georgia grandparents have rights in a child custody case?
While the so-called ‘extended family’ has become a bit less common in Georgia and the U.S. over the last few decades, it is still the case that grandparents are still often involved in their grandchildren’s lives. This can be very rewarding for all involved, as the grandparents get to bond with the grandchildren, the grandchildren have a further safety net of caring adults, and the parents have another set of hands to rely on when they need the children cared for. Unfortunately, when parents split up and custody is in question, this can create some awkwardness as one party may or may not want further contact with the family of the other. What can grandparents do in such cases?
Georgia Code Section 19-7-3 discusses some of the rights grandparents may have when child custody is at issue. The law states that grandparents may file an intervention action for visitation with the grandchildren in a pending divorce or child custody case, or an original petition when the parents are separated but no custody action is pending. It is important to note that the statute specifically denies the ability of grandparents to ask for visitation when the parents are living together and with the children in question.
To succeed in such a request for visitation, the grandparents would need to convince the court that both the child’s health and welfare would be harmed by failure to grant the visitation, and that such an order is otherwise in the best interests of the child. It should be recognized that although they sound similar, these two standards are different, with the former being a bit harder to prove. Further, grandparents may only file an action for visitation only once in any given two-year period.
Grandparents could also ask for custody of the grandchildren by filing a petition, but in Georgia, they are not necessarily better off than any other person filing such a petition. That is, the court will presume that the child’s best interest will be to remain with one of the parents, and the grandparent would have to overcome that presumption. Those who want to more about their legal rights in a child custody case may wish to consider consulting an experienced Georgia family attorney.