The Difference Between Legal Custody and 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 Child 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.
Visitations, Supervised Visitations and Custody Schedules
Visitation is the time spent with the parent who does not have physical custody. Visitation is awarded in nearly every case. In rare instances, a judge will order something called “supervised visitation.” Supervised visitation is ordered when there is a risk of harm to the child by the parent. The supervisor could be a family member or a member of law enforcement or a supervisory agency.
Whether visitation or joint physical custody is in place, the state of Georgia can help parents create a custody schedule if the parents cannot agree on one. The custody schedule determines if parents have mid-week visits, alternating weekends with the child, summer vacation, etc. The court will also help determine which parent spends holidays and birthdays with the child. Georgia allows modification of the custody schedule if a parent has significant life changes such as a new career, change in living situation or a health issue.
Make sure your voice is heard when the court is determining your custody schedule. Contact our office today and have one of our expert Family Law Attorneys help you create a custody schedule that fits your parenting goals.
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 pertaining to well-being of the child?
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 granted the sole authority 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.
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.
The Impact of Moving to Another State on Child Custody
As a parent you still have the freedom to change residential locations, but it may require some extra consideration if you and the child’s other parent aren’t together. This is because, since a Georgia Supreme Court case decided in 2003, there is no longer a presumption that the custodial parent should retain custody if he or she moves. What this means is, the parent who does not have physical custody may file a petition for modification based upon the change in circumstances created by the custodial parent’s move. The parent may also need to ask for legal help in ensuring that child support payments continue.
Georgia family courts, in deciding such cases, will look to see what the best interests of the child are. As such, as we have mentioned before, there is very little way to know how a court will rule, as the “best interests” standard will vary with the facts of every case. While a move to allow the parent to become more financially secure may be good for the child in the long run, this may have to be balanced against the effect on the child’s relationship with the other parent, or the specific living arrangements and uprooting of the child’s routine.
As can be seen, it may be wise for both custodial and non-custodial parents to think through the potential consequences on child custody when a move out of state is a possibility. Sometimes the best solutions can be determined during mediation.
What factors do Georgia Courts consider for custody modification?
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.
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. 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?
An incorrect assumption among some Georgia residents is the belief that mothers have an advantage in child custody court proceedings, whether in a divorce or in an out-of-wedlock situation. The law itself, in Georgia, however, is clear on the matter and states that this is not the case. 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 is the definition of the “best interest of the child” standard in Georgia child custody?
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.
I’m scared for the safety of my child. Is there such a thing as emergency custody in Georgia?
In rare cases when the safety of the child is an issue, the State of Georgia will grant a form of emergency custody. The judge will give what’s called an ex parte order and allow the concerned parent to present his/her case without the other parent present and/or without waiting for the other parent to respond. This is just a temporary custody arrangement to protect the child’s well-being.
What would make my child have to testify in court with a custody case?
Children rarely have to testify for a custody hearing or trial. In fact, most judges will try to avoid having a child appear in court. In the cases where a child’s voice must be heard, a Guardian ad Litem will often be appointed to state the child’s testimony and wishes. If a child is 14 and qualifies for custody election, the child may choose to appear in court or be spoken for by the Guardian ad Litem.
How can I prepare for a custody hearing?
When you need to appear for custody hearing or custody trial, you need to be prepared to answer questions regarding your fitness as a parent. You need to be able to show that you will provide for all of the child’s needs and that you have the child’s best interest in mind.
It may be a good idea to collect evidence demonstrating your role as a parent. Photographs of you at your child’s events, drawings and cards from your child and receipts from your activities together are all items to consider.
If you have evidence against the other parent that shows they are unfit, please note that you cannot just bring them to the trial as there is red tape to consider. Social media items like Facebook or Twitter post need to be authenticated, for example. Police reports require testimony from the police officer. Photographs may need to be authenticated by the person who took the picture.
The evidentiary process is confusing for custody hearings. To guarantee you present the best case to the judge, you need a skilled family law attorney to help you prepare for trial and fight for your rights. Call our office now at 770-887-1209 or use our contact form to schedule an appointment at our Cumming, GA office.
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.