Georgia Child Custody Questions

Georgia child custody attorneys provide answers to frequently asked questions about child custody in Georgia.

Who will get custody of our child?

In Georgia, there are two types of custody: legal custody and physical custody. In almost all cases both of the custody types are shared between the parents.

Typically, the parents are awarded joint legal custody, which means that the parents must share in decision-making regarding the children and that the parents have equal rights to the child’s medical and educational records. Ultimately, one parent will be awarded final decision-making authority for times when the parents are unable to reach a mutual decision. Typically, final decision-making goes to the parent who has primary physical custody.

Physical custody is, in most cases, also shared. However, usually there is one parent designated as the primary physical custodian and the other parent receives secondary physical custody. The courts determine physical custody based on several factors, including, most importantly, who has been the child(ren)’s primary care giver during the course of the marriage.

What is joint custody? What is sole custody?

Joint legal custody is the norm in the State of Georgia. This is when the parents share decision making authority regarding the minor child.

Typically, there are four areas in which the decisions are required to be made jointly: religious upbringing of the child(ren); medical care of the child(ren); extracurricular activities; and education.

Even though a joint legal custodial arrangement requires that the parents share decision-making, the courts will designate one parent to have final decision-making authority in the event that the parties cannot agree.

Final decision-making authority does not allow for a parent to make a unilateral decision. Even though one parent is designated to have final decision-making authority, that parent must still consult with the other parent before making any major decisions regarding the child(ren).

Joint physical custody is not the norm in the State of Georgia. Joint physical custody is typically an arrangement where the parents share equal or nearly equal parenting time. Judges in Georgia have a bias against equal parenting time. Joint physical is a parenting arrangement that can typically only be accomplished by agreement. Judges will assign one parent as the primary custodial and the other as secondary.

Sole custody is very unusual and it means (whether in terms of legal or physical custody) that all of the custodial rights are assigned to one parent and the other parent has no rights. Having sole custody, however, does not alleviate the other parent of their obligations, such as child support obligations.

If both parents share custody does anyone pay child support?

In many cases when the parties are able to agree on equal parenting time, one parent will still continue to pay support. Because child support is calculated based on income, the parent with the higher income will still likely pay some support. The only time when there may be no support paid is in circumstances when the parties share equal parenting time and have nearly equal incomes.

Can a parent refuse to allow visitation if child support is not paid?

No. Child support and visitation are two separate rights/obligations that are not connected to one another.

When can my child decide which parent to live with?

At age 14, a child can select which parent to live with. However, the election is not an absolute. Even with the election, the parent who is not being selected by the child still has the right to present evidence that the child’s election is not in his/her best interest. It is very difficult to overcome a child’s election. It is only in the most extreme of circumstances that a court may not go with the child’s election.

Do grandparents have custody and visitation rights?

In the State of Georgia, grandparents do not have any type of custodial rights. In the event that both parents either are deceased or are declared unfit, a grandparent will likely receive priority in a custody evaluation. However, absent death or a declaration of unfitness, grandparents have no rights to children.

What is a parenting plan, and do I need one?

The parenting plan is the portion of the final divorce decree that addresses all custodial issues in the divorce. The parenting plan must be complete. It should acknowledge the importance of a child having a relationship with both parents and address the legal custody of the child and a plan for the child’s physical care.

The plan should detail parenting time including normal visitation periods, as well as a holiday schedule. The plan must demonstrate how each parent will have access to records regarding school, health care, extracurricular activities and religious training, and it must also designate, who has responsibility for making major decisions about the child.

If my separation agreement includes custody/support can it be included in the divorce decree?

The term separation agreement is not commonly used in Georgia. Georgia does not recognize legal separation and therefore, you will not typically see separation agreements.

However, in circumstances where the parties decide to live separately but not divorce, a separate maintenance case may be filed. In a separate maintenance case, custody and support may be addressed.

However, if the parties decide to file for divorce, then it is likely that the court will keep the status quo, unless either party can show a change in circumstances that warrants a change or if the separate maintenance agreement does not meet Georgia’s guidelines for support.

Some people refer to the Final Settlement Agreement as a separation agreement. In the event of a divorce filing, the court can incorporate any agreement of the parties into the final decree of divorce.

Temporary orders are orders that govern the conduct of the parties during the pendency of a divorce action. Typically, the parties can expect that the judge will order one person to leave the house, while maintaining the status quo for the marital residence.

The court will likely order that all of the bills continue to be paid by the party who has been paying the bills. This is often very complicated particularly when there is one working party and one party who has been a stay at home parent. The court will likely order the one working party to leave the house, but continue to pay the bills.

The court will recognize that there must be some contribution from the stay at home party but that it may take time for that party to obtain employment.

As to custody, the norm in Georgia, is for one party to have primary custody while the other gets alternating weekends for visitation time. The reason that the courts typically go with the default of alternating weekends is because temporary orders are usually entered early in a case before the parties have time to gather a sufficiency of evidence to show why standard visitation is not in the child(ren)’s best interests.

When will child custody be decided?

Custody is typically decided twice. First, it is addressed at the temporary hearing. Temporary custody is usually very early in a case, a month or two in after the filing. Custody on a permanent basis is determined at the trial of the case, or at any point prior to the final hearing when the parties may be able to reach a final agreement.

When can I modify custody?

In order for custody to be changed, the moving party must show that the party to whom custody was originally awarded is no longer able or suited to retain custody or that the conditions and circumstances surrounding the child or the parent out of the custody have so changed that the welfare of the child would be substantially enhanced by modification of the original custody award. See Jones v. VanHorn, 283 Ga. App. 141 (2006); Elders v. Elders, 206 Ga. 297 (1950).

There are no time restrictions on when a modification of custody can be filed. The moving party must, however, be able to show that there has bee a change in circumstances that would warrant modification.

What if we cannot agree on a custody arrangement?

In the event that the parties cannot agree on a custody arrangement, then the judge will make the determination of custody. Even with a recommendation from a Guardian Ad Litem, the judge still has full discretion to make the custody determination based on all evidence presented at trial.

What is an ex parte order?

An ex parte order is an order from a judge without having given opportunity for both parties to be heard. The only time that one can expect to receive an ex parte order is in a situation where the children may be in severe danger and giving the opposing party time to respond may result in significant harm to the child.

How is custody decided?

The standard in Georgia is to determine custody based on the best interests of the minor child. Unless one parent has been a danger to the child, the beginning point is to typically establish who has been the primary care giver for the minor child. In most cases, the primary care giver will receive primary physical custody.

The primary care giver is the parent who wakes the child up for school, helps him/her get ready, provides meals, does bath time, takes the child to doctor’s appointments, is at parent teacher events, etc. In cases where these duties are equally shared, it is a little more difficult for the judge to determine. Factors that may be considered are work schedules, who has available time for the children, stability, ability to provide, and at a certain age, the child’s desires may also be considered.

How can I increase my chances at getting a larger custody agreement?

Do not move from the marital residence (or the home where the child is living) until there is an agreement. Many men decide that it is better for the child to be in an environment where the parties are separated than to live in a contentious environment with both parents.

Though this is noble in concept, if you move out before a custody order is in place, your rights to see your child are virtually at your wife’s discretion. Do not allow her to have that power over your relationship with the children.

From a really basic perspective, the way to increase your chances of having more custody time, is to be more involved with your child. Be there for extracurricular activities, participate in bedtime and bath time, take the children to school, etc. The easiest way to get extra custody time is to show the court that the needs of the child dictate your available presence.

What is visitation?

Visitation is the common term used for the non-custodial parent’s parenting time. Visitation may also be known as secondary physical custody.

Can a judge order supervised visitation or no visitation?

Yes, a judge has discretion to order supervised visitation. It is not very common, but in cases where it is shown that it is likely that one parent is a risk for harm to the minor child, a judge can order supervised visitation. This may mean supervision by a family member, a supervision agency, or law enforcement.

As to no visitation, it is highly unlikely that a judge would order no visitation unless parental rights have been terminated.

Do courts favor the mother over the father?

The unfortunate reality is that many judges do have a preference of mother over father. However, in determining custody, a judge must consider the evidence presented as to who is in the best position to provide for the minor child. The court must consider what is in the child’s best interests. Gender of the parent should not come in to the evaluation.

What should I know before a custody trial?

Before a trial of any type, you should know that the most important this is preparedness. In every custody battle, there is a “winner” and a “loser”. Part of being prepared is knowing what the other side is going to say to try to pin you in the “loser” category.

Be able to answer every allegation that may be made. Be able to show that you have been an active, involved parent. Be able to show any downsides that may exist for the other side. Be prepared to stand up and say to the judge, “I can and will take care of my child and custody of this child should be granted to me because that is what is in my child’s best interests.” Be able to support anything you say.

Can I collect my own evidence to use if my custody case goes to court?

Some evidence can be gathered independently by a party. However, not all documents produced by a client are admissible.

For example, original bills received by the client from a creditor may be admissible in court. However, printouts from Websites like MySpace or Facebook may not be admissible as gathered by the party. Most courts will require authentication of those types of documents and may require production directly from the Website administrator.

Photographs taken by any person other than the party will not be admissible without testimony from the person who actually took the photograph. Even a police report provided by a client is not admissible without testimony from the police officer who produced the report. It is very important for clients to gather information in the way of documents, witness lists, etc., and provide that to their attorney. The attorney will have to evaluate each document to determine if that piece of evidence is admissible in court or if an admissible version of the document should be obtained through the discovery process.

Do I need to use a Guardian ad Litem/Custody Evaluator?

Guardian ad Litems are often necessary. Because it is unlikely that the judge can or will take the time to know the intimate details of a child’s upbringing and to see who is, in fact, a better provider, it becomes necessary for a third party to do an investigation.

Guardian ad Litems spend time with the child, the parents, and third parties who are with the child and the parents and can get a much closer glimpse of the child’s best interests than an attorney would be able to present in a one-day trial. Guardians are valuable assets for any father seeking primary custody of his children.

Will my child need to appear in court?

It is very rare that a child is ever asked or expected to testify in court. In fact, in many circumstances judges will think negatively of a parent who asks a child to testify against the other parent. In the event that there is a need for a child’s voice to be heard, it is best to have a Guardian ad Litem involved who can be the voice and representative of the child.

What is the Parental Kidnapping Prevention Act?

This act applies in all interstate custody actions, even when kidnapping has not been asserted. A great deal of this particular act addresses jurisdiction issues for cases when the parents have filed custody actions in two separate states. It violates federal law for two states to concurrently assume jurisdiction over the same custody matter.

According to the act, the state that will have jurisdiction is the one that: has subject matter jurisdiction over the matter under state law and is the resident state of the child or either parent.

What if my wife tries to move the kids out state?

Once a divorce action is filed and both parties have notice of the filing under Georgia law, neither parent can remove the child from the state while the divorce is pending without consent from the other parent. Upon a determination of custody, the court cannot order the custodial parent to remain in Georgia or otherwise restrict that parent’s ability to relocate.

After custody has been determined and a divorce decree entered, a decision to move the child out of the state may warrant evaluation of the wisdom of the move from Georgia. Any time a parent decides to move away, the other parent should file a modification action. That is not to say that a move will automatically change custody, but a decision to move with the children certainly is a change of circumstances that warrants review by the court.

Can a parent change the child’s last name without the other parent’s permission?

A child’s name cannot be legally changed without the consent of both parents.

If I have custody, will I receive child support?

All primary physical custodians will receive support in some form under the divorce decree. Because Georgia sees child support as a right of the child, and not the custodial parent, the right to receive child support cannot be waived.