Two Types of Child Custody
In Georgia, there are two types of custody: legal custody and physical custody. Most commonly, these two types of custody are shared by both parents.
Typically, both parents share legal custody and are thus able to make important decisions together. Ultimately, one parent is granted final authority if both parents are unable to agree. This authority usually goes to the parent who also has primary physical custody.
Physical custody is also shared in the majority of cases. However, one parent is usually designated as the primary physical custodian while the other has secondary custody. The courts determine physical custody using several factors, all examined within the best interests of the child. The most important factor is thus who has been the primary care giver to the child throughout the marriage.
The primary care giver is the parent who wakes the child up for school, helps him or her get ready, provides meals, does bath time, takes the child to doctor’s appointments, shows up at educational events, etc. In cases where these duties are equally shared, it is more difficult for the court to decide. Other factors that may be considered include work schedules, who has more time to spend with the children, stability, and ability to provide. At 14, the child may state who he or she would rather live with and their opinion will be taken into consideration, unless extreme circumstances indicate that their choice does not serve their best interest. One thing that should not (and hopefully will not) affect the decision is the gender of the parents.
In any event, custody in a divorce, legitimization or modification action must eventually be detailed in a court order / documents called a Parenting Plan to be enforceable upon the parties. The requirements of a Parenting Plan in Georgia are detailed in O.C.G.A. Section 19-9-1.
The Role of the Guardian ad Litem
Your child does not need to appear in court, and judges usually frown upon parents who want their children to testify. However, usually it is best to appoint a Guardian ad Litem, a neutral third party, to observe the child’s best interests and be the child’s voice in court.
If you want to increase your chances of getting a larger part of the custody you should be prepared to show that the needs of the child dictate your available presence and support the fact that you are heavily involved in your child’s life. Oftentimes, this includes staying in the marital home throughout the divorce. You should also come to the trial prepared; know your strengths and weaknesses and the strengths and weaknesses of the opposing party. Come ready to answer any allegations made against you and support any statements made in your favor.
The Role of the Court
Custody is typically decided twice. First, it is addressed at a temporary hearing, usually one month or two after filing. Permanent custody is decided at the end of the case, usually at its trial. If you and your spouse cannot agree on the details of the custody agreement, the judge will decide for you. There are no time restrictions for when you can file to modify the child support agreement; however you must be able to show that there has been a significant change in circumstances that would warrant a modification.
The judge can also order an ex parte order in rare circumstances where waiting to hear both parties would pose harm to the child. The judge can also order supervised visitation or no visitation for those reasons. Sole custody is also very unusual, but does not alleviate the other parent of their child support obligations. Child support and custody are not connected to one another, and thus a parent cannot refuse visitation if child support is not paid.
Child support calculations are based on income and for the benefit of the child, and thus the parent with the higher salary will likely pay some support. The only time when there may be no support paid is in circumstances where both parents share equal custody and time and have nearly equal incomes. However, all primary physical custodians will receive some support in the final divorce decree. This right cannot be waived as Georgia sees child support as the right of the child, and not the parent.
Typically, Georgia judges have a bias against awarding equal parenting time. Joint physical custody is a parenting arrangement typically only accomplished through agreement. Judges will thus assign one parent as the primary custodian and the other as the secondary. In the state of Georgia, grandparents do not have any type of custodial rights, absent death or declaration of unfitness of the parents.
Joint Legal Custody
Joint legal custody is the norm in Georgia, and typically the primary custodian will have final decision making power. This does not mean, however, that this parent has unilateral power; all legal decisions should be shared with the other parent. For example, a child’s name may not be changed without the consent of both parents.
The four main areas of legal custody include: religious upbringing, medical care, extracurricular activities, and education. The parenting plan made by the parents and included in the final divorce decree will lay out the details of these four areas. It will also detail parenting times, holiday schedules, and will acknowledge the importance of the child having a relationship with both parents.
Once a divorce action has been filed and both parties have the notice of filing, neither parent can remove the child from the state while the divorce is pending without consent from the other parent. Upon determination of custody, however, the court cannot order the custodial parent to remain in Georgia or otherwise restrict their ability to relocate.
Modification of Custody
Any time a parent decides to move away and the other parent is not satisfied with that decision, they are encouraged to file a modification action. While it is not guaranteed this will modify the existing agreement, it certainly warrants review by the court. Interestingly enough, many modifications of custody are actually done as an uncontested matter. This is because once the parties have settled into their new roles as parents not living together and having to co-parent, it is often easier for the parties to reach an agreement about significant changes in what is best for the children and who they primarily live with and their visitation schedule.
Obtaining Legal Help
If you are facing a divorce with children, a modification of custody or just have questions about child custody in Georgia courts, call us at 770-609-1247. Our divorce and family law attorneys have helped hundreds of clients with questions about custody, and we can help you also. Contact >
